Fox's Special Report ignored specific criticism of Bush judicial nominees

››› ››› JEREMY CLUCHEY

Fox News managing Washington editor Brit Hume interviewed George Washington University Law School professor Jonathan Turley about whether the judicial nominees submitted by President Bush that Senate Democrats have blocked are really "as hard right as their opponents claim." But in purporting to analyze four nominees whom Democrats have blocked, both Turley and Hume omitted key reasons Democrats have cited for opposing these nominations.

On the April 12 edition of Fox News' Special Report with Brit Hume, Turley and Hume discussed four of Bush's nominees that Democrats have blocked: California Supreme Court Justice Janice Rogers Brown (nominated to the D.C. Circuit); former Alabama Attorney General William Pryor (given a recess appointment by Bush to the 11th Circuit); Texas Supreme Court Justice Priscilla Owen (nominated to the 5th Circuit); and North Carolina District Court Judge Terrence Boyle (nominated to the 4th Circuit). Turley touched on the substantive criticism being leveled against the nominations of Owen and Boyle -- that Owen "was criticized in print by [Attorney General] Alberto Gonzales, who accused her of [conservative] judicial activism," and that Boyle has a high reversal rate by higher courts on the basis of "plain error," which Turley noted is "a very low standard for a judge to make." The substantive objections to Brown and Pryor were not addressed, however.

Turley stated he is "a little bit mystified as to why Brown has attracted so much criticism," noting only that she "is suspected of having pro-life views and being very conservative on a number of issues, particularly when it comes to property rights, environmental laws, and those types of things." But when Hume asked if Brown has been "heavily controversial" in her home state of California, Turley answered: "I don't think she's been terribly controversial." In fact, Brown twice received an "Unqualified" ratingPDF file from the California judicial evaluation committee, which wrote that she was "prone to inserting conservative personal views into her appellate opinions," according to an April 26, 1996, Los Angeles Times report. Progressive advocacy group People for the American Way (PFAW) outlined the reasons for Democratic opposition to Brown's nomination in a 2003 reportPDF file:

1) [H]er troubling dissents concerning discrimination, consumer rights, and other issues; 2) her disturbing disregard for precedent, especially with respect to constitutional and civil rights; 3) her ultra-conservative ideological views as reflected both in her speeches and judicial opinions; 4) her strong support for extreme "private property" rights theories, including long-discredited legal theories that threaten important governmental actions regulating corporate behavior; and 5) her troubling disagreement with constitutional protection for fundamental rights and liberties. As the Atlanta Journal-Constitution has concluded [in an October 29, 2003, editorial], Brown's views are "far out of the mainstream of accepted legal principles" and she is "not qualified for the U.S. Court of Appeals for the D.C. Circuit."

Brown's current ratingPDF file from the American Bar Association (ABA) is Qm/NQmin (meaning a majority consider her "Qualified" and a minority consider her "Not Qualified"), which is the ABA's lowest "passing" rating.

On the subject of Pryor, Turley noted that "I actually know" him and said that Pryor was "sharp as a whip" and "a real bright light." Turley added: "I think he's gotten a raw deal, quite frankly." But Turley failed to mention that Democrats have sharply criticized his role -- and inconsistent answers to the Judiciary Committee about that role -- in co-founding and leading the Republican Attorneys General Association (RAGA), "which raises campaign donations from corporations that its members, as attorneys general, may have a duty to investigate, prosecute or sue," according to a report by the progressive judicial watchdog group Alliance for Justice. The report further outlined additional reasons for Democratic opposition to Pryor's nomination:

Co-chair of the 2000 Bush-Cheney campaign in Alabama, Pryor was the only attorney general to file an amicus brief in support of President Bush's position in Bush v. Gore, a case involving Florida -- not Alabama -- election law. ... [Pryor] made Alabama the only state seeking to strike down parts of the Violence Against Women Act (VAWA) and the Clean Water Act (CWA). Thirty-six other states opposed Pryor on VAWA, eight others on CWA. ... [Pryor] filed briefs calling for eliminating protections in the Family and Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Civil Rights Act of 1964 and the Endangered Species Act. ... Pryor called Roe v. Wade "the worst abomination of constitutional law in our history."

In 1997, Pryor, along with the Christian Coalition's Ralph Reed, attended a "Save the Commandments" rally in Montgomery, Alabama, where he stated: "God has chosen, through his son Jesus Christ, this time and this place for all Christians ... to save our country and save our courts." ... Pryor claimed that executing the mentally retarded did not violate the U.S. Constitution's prohibition against cruel and unusual punishment. The U.S. Supreme Court, in Atkins v. Virginia, rejected Pryor's argument, and prohibited all states from executing the mentally retarded.

Turley also claimed that Pryor "carried out his duties" as attorney general by filing ethics charges against former Alabama Supreme Court Chief Justice Roy Moore when Moore refused to obey a court decision ordering the removal of a two-and-a-half ton Ten Commandments monument from the foyer of the state Supreme Court building. Turley contended that though Pryor personally agreed with Moore on the issue, he was willing to file the charges that led to Moore's removal from the Alabama Supreme Court, proving that "even against his own views," Pryor "will carry out the law." But Turley failed to note the extent to which Pryor publicly supported Moore and marshaled the resources of his office to defend him before eventually filing ethics charges; Pryor actually appointed "three private lawyers as Deputy Attorneys General of Alabama to represent Moore" in federal district court, and when the district judge held Moore's actions unconstitutional, Pryor's office joined Moore's efforts in appealing the decision to the 11th Circuit. Turley also did not mention that at the time he filed the state ethics charges against Moore, Pryor was in the midst of a highly contentious battle in the Senate over his nomination to the 11th Circuit.

Hume introduced the segment by claiming that Senate Democrats believe they are "entitled to use the extraordinary step of denying them [judicial nominees] a vote in the Senate to keep them off our nation's second-highest courts." But as Media Matters for America has repeatedly noted (here, here, and here), the Republican-controlled Senate prevented approximately 60 of former president Bill Clinton's nominees from receiving a vote on the Senate floor, and in many cases, even a hearing in the Senate Judiciary Committee. And despite Democrats' opposition to a few of Bush's nominees, The Washington Post pointed out in a December 13, 2003, article that "confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan."

Media Matters has also noted the consistent absence of progressive viewpoints on the one-on-one interview segment of Special Report with Brit Hume.

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