How The NY Times Is Helping Republicans Frame The Supreme Court Controversy

Blog ››› ››› ERIC BOEHLERT

Scanning Wednesday's New York Times, Republicans looking for clues as to how the unfolding Supreme Court controversy is playing in the mainstream media must have been relieved. By making the unprecedented demand that President Obama not nominate anyone to fill Antonin Scalia's seat, Republicans are betting that they won't be depicted and denounced as runaway obstructionists in the press. Instead, they're hoping their radical plan will be portrayed as just the latest bout of partisan gridlock.

So far in the news pages of the influential Times, Republicans are getting their wish.  

Wednesday's Times had two front-page Supreme Court articles that likely comforted Republicans. The first piece ran under the headline, "President Raises Stakes in Supreme Court Nominee Battle," clearly indicating that Obama had said or done something to worsen the court conflict.

Had Obama angrily denounced Republicans? Had Obama vowed to nominate a liberal extremist to the bench, thereby setting off a Capitol Hill firestorm?  

No. What Obama did was calmly answer reporters' questions this week about Scalia's death. The president said he plans on following the U.S. Constitution and nominate Scalia's replacement for the Senate to consider. So why the weird, Obama-raises-the-stakes Times headline, which suggests he's the one escalating the Republican-manufactured crisis?

When I expressed puzzlement over the headline on Twitter, I quickly received some alternative headline suggestions that the Times could have used to more accurately capture the dynamics in play:

"President Responds to GOP's Planned Partisan Obstruction on Court Nominee"

"Senate Republicans Ignore Constitutional Responsibility"

"President Correctly Flexes Constitutional Power"

All good ideas. And to those, I'd add these:

"President Won't Back Down From Republicans' Supreme Court Threats"

"President Pledges To Offer Supreme Court Nominee, Despite Republican Threats To Obstruct"

Why do headlines matter? Because on this Supreme Court story in particular, how the Beltway press frames the unfolding conflict could go a long way in determining the outcome. As mentioned, Republicans are betting their unprecedented attempt to deny a sitting president his right to nominate a Supreme Court justice won't be portrayed, especially in the New York Times, as being wildly unusual or anti-democratic.

The Times, and by extension a lot of the Beltway media, is doing the Republican Party an immeasurable favor by framing the story precisely how Republicans want it framed: It's just another messy partisan battle.

The good news is the Times legal coverage of the court story has been helpful and illuminating. The Times' opinion page voices have also published strong material on the topic. But the paper's news and political coverage has been too tepid and afraid of the facts.

Note that Wednesday's Times included a second front-page Supreme Court story, this one looking at various  nomination scenarios. The headline read, "Court Path Is Littered With Pitfalls, for Obama and the G.O.P." -- suggesting the controversy is a bipartisan undertaking and that Obama, by simply nominating a new justice, faces political "pitfalls."

The article stressed Scalia's death immediately "prompted lofty-sounding pronouncements from leaders of both parties," implying both sides are driving the current crisis. But what did "leaders of both parties" say after Scalia's death? Leaders of the Republican Party announced they were ripping up Supreme Court nomination norms and protocols, while Democratic leaders bemoaned the fact that Republicans were ripping up Supreme Court nomination norms and protocols.

What exactly is "lofty" about claiming a Supreme Court seat must sit empty for at least a year and for purely partisan reasons?

Elsewhere, note how the Times reported that Democrats were mobilizing to fight the Republican plan [emphasis added]:

Top White House officials and senior Democrats on Capitol Hill have begun discussing themes to counter the Republican threat: insisting that the Senate follow its constitutional responsibilities, and portraying a yearlong obstruction as at odds with decades of precedent for Supreme Court nominations.

According to the Times, Democrats are going to portray the GOP's radical obstruction as being unprecedented. But of course, it is unprecedented. That's a fact. So why did the Times suggest that the truth is somehow a partisan portrayal? It's that kind of tiptoeing around plain facts that helps Republicans.

In today's paper, the Times stresses how "both sides" try to block judicial nominations and that Democrats have simply "swapped uniforms" to complain about Republican tactics. Left unsaid: Since 1875, no Senate has ever refused to hold hearings or a vote for a Supreme Court pick.

Meanwhile, time and again the Times has depicted the Supreme Court showdown as some sort of "epic" partisan brawl, when in truth only one side is throwing wild punches: Republicans.

After Scalia's death, the Times stressed his passing had sparked "an immediate partisan battle," suggesting the warfare ran both ways. But how is Obama sparking a "partisan battle" by simply doing what presidents are supposed to do in this situation?

Also note that in its Scalia coverage, the Times has repeatedly noted that as a U.S. senator, Obama voted to filibuster President Bush's Supreme Court nominee Samuel Alito, and then voted against Alito's confirmation in the up-or-down Senate vote, implying those actions are analogous to the current crisis. 

But they aren't.

The Alito filibuster never had a chance of succeeding.  (It was voted down 72-25). And by voting "no" on the Alito nomination, Obama did what some senators have done for centuries when they don't think a Supreme Court nominee is qualified. By contrast, Republicans are demanding no nominee receive a hearing until 2017, and that no nominee receive a senate vote until 2017.

Observing the unfolding Scalia coverage, Josh Marshall at Talking Points Memo lamented how once again Republicans are able to convince the "mainstream media to normalize what are in fact unprecedented actions."

Chief among those doing the normalizing? The New York Times.

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