Why this right-wing Kagan lie isn't working in the press

Blog ››› ››› ERIC BOEHLERT

Let's chalk it up to progress.

One year ago, the Beltway press was willingly led around by right-wing Obama critics who, by grabbing some old quotes ("wise Latina women") and twisting them out of context, launched a smear campaign against his Supreme Court nominee, Sonia Sotomayor, while labeling her a racist in the process. Instead of stepping in and offering clarity surrounding the bogus quote-driven attack, the press played along. The press played dumb on a massive scale and helped hype the phony "racist" attack against one of the country's rising legal stars.

Fast forward: In the wake of Elena Kagan's nomination to the Supreme Court this week, the GOP Noise Machine swooped back into action and once again launched a nasty smear campaign that was built on falsehoods and misinformation. (i.e. She had "banned" military recruiters from the Harvard Law School campus.) But much to my surprise, this time, portions of Beltway press didn't take the bait. This time, key players within the press corps reported the facts on the case while refusing to play the role of an eager amplifier for a right-wing lie.

Media Matters for America been out front, highlighting the facts of the case and debunking the banned-military-recruiters myth even before Kagan was announced as Obama's nominee.

I realize that commending journalists for simply doing their job seems odd, and in a way represents the soft bigotry of low expectations. But given the Beltway press corps' truly dreadful Supreme Court performance last summer with regard to Sotomayor, the recent coverage represents a ray of hope.

And notice I'm not toasting the press because I think journalists went easy on Kagan this week, or they ignored the controversial issue of how military recruiters were treated by Harvard Law School during her tenure as dean. Not at all. I'm simply noting that when confronted with a blatant misinformation campaign about Kagan and the recruiters, a number of journalists did the right thing and spelled out the facts. Period.

Was the recruiting coverage some sort of award-winning effort? Hardly. Journalists could have done a better job detailing how Harvard Law School students were never denied access to recruiters, and that Kagan at every step followed the law.

But in general, I think it's clear the right-wing's beloved Kagan-banned-military-recruiters-from-Harvard myth never broke free from the far-right media echo chamber even though, Lord knows, the GOP Noise Machine tried to push it.

And on the surface, the attack seemed to be a beaut. It dealt in short-hand with a hot-button issue: Out-of-touch elite Ivy Leaguer belittled the military during wartime by banning them from campus.

A brief background: In 1979 the Harvard faculty voted to keep out of the law school's Office of Career Services any employer that discriminated in its hiring practices. That included the military because it refused to admit gays to serve openly. In 2002, under pressure from the federal government, which used a 1996 law known as the Solomon Amendment to threaten to withhold hundreds of millions of dollars in funding, Harvard created an exception for the military, and allowed recruiters to use the law school's Career Services offices, even though with "Don't Ask, Don't Tell," the military still barred openly gay soldiers.

When she became dean in 2003, Kagan continued to honor the special exception that Harvard had created for military recruiters. The following year, a federal appeals court ruled that the Solomon Amendment was unconstitutional. In the wake of that decision, Kagan moved to prevent military recruiters from using the law school's Career Services office, but allowed recruitment to continue via the Harvard Law School Veterans Association.

As Media Matters has documented, "Kagan consistently followed the law, Harvard students had access to military recruiters during her entire tenure as dean, and Harvard's data show that her actions did not adversely affect military recruitment."

Even before the Supreme Court subsequently overturned the Solomon Amendment ruling, the Harvard Law School again opened its career office doors to the military recruiters. All of which meant Kagan never "banned" military recruiters from campus "kicked" them off campus. In fact, during her tenure, the number of Harvard law school students who joined the military remained consistent with the rate under previous deans.

Complicated? A bit. But despite the chorus of cat calls from the right-wing media claiming Kagan had uniformly "banned" recruiters from Harvard, many news outlets stayed clear of that kind of inaccurate, loaded language:

The Washington Post [emphasis added]:

In 2004, after the 3rd Circuit said the federal rule was unconstitutional, Kagan had reinstated the school's nondiscrimination policy for military recruiters; the school's career office did not help them that fall.

Associated Press:

In 2004, the 3rd U.S. Circuit Court of Appeals found the Solomon Amendment unconstitutional. The next day, Kagan banned military recruiters from using the campus office but still allowed work through the veterans group.

Even better, The New York Times and The Boston Globe did their readers a service by clearly spelling out the details of the recruiting situation under Kagan and explaining that recruiters always had access to students while she was the dean. From the Globe:

"Students who wanted to serve were still able to interview, and that was something she was very, very sensitive to,'' said Mark Weber, assistant dean for career services at Harvard.

But unfortunately, relying on GOP short hand, some news orgs still got the story wrong.

From Politico:

Barring bombshells, the GOP will have to settle for the revelation that Kagan barred military recruiters from Harvard during her tenure over a legal ban on gays serving openly she regarded as repugnant and discriminatory.

Not true.

And The Daily Beast:

Obama's high-court pick is young, smart, and liberal, and should be confirmed, argues Peter Beinart. But she should apologize for banning military recruitment at Harvard -- a major blunder

That's false too.

On balance though, the press gets higher SCOTUS marks -- so far -- compared to last summer's truly gruesome journalism display surrounding Sotomayor and the phony "wise Latina woman" attack; a dishonest broadside that was practically sponsored by the Beltway press corps, which could not be bothered to tell the truth.

Remember that train wreck? It revolved around Sotomayor's now-infamous quote about a "Latina woman" judge reaching a "better conclusion" on the bench than her white male counterparts. She made the comment as part of a speech she gave at University of California-Berkeley in 2001 in which she explored what it would mean to have more women and minorities on the bench.

What was the context? When Sotomayor asserted, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. She was not making some sort of blanket statement suggesting Latina women would categorically make better judges than white men; that they were genetically superior.

Nonetheless, the cherry-picked quote became the basis for a slanderous claim made by Newt Gingrich and Glenn Beck, among others, that Sotomayor was a "racist" because, they claimed, she thought that Hispanic judges render better decisions than whites.

Of course, the hateful "racist" charge collapsed once the quotes were presented in their original context. But last summer, the press categorically refused to do that and, right alongside Gingrich and Beck, pretended Sotomayor was talking about all decisions from the bench.

And the playing dumb was rampant.

Politico, for instance, failed to provide context for the quote here, here, here, here, here, here, and here. So didTime, The Dallas Morning News, The New York Times, The Boston Globe, and the San Francisco Chronicle. Pretty much every news outlet in the country followed the rule.

Last year, via Nexis, I counted more than 900 news media references to the "wise Latina women" quote, all of which failed to mention that her comment was made in the context of discrimination cases. To me, that was a conscious choice journalists made, for whatever reason, to propagate a right-wing falsehood about Sotomayor.

So far, faced with a similar choice in covering the Kagan nomination and the bogus tale of military recruiters being "banned" from Harvard, portions of the press have made the right choice -- to stick to the facts.

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