Fox, MSNBC allowed White House to distort the "Ginsburg precedent"

››› ››› JOSH KALVEN

During appearances on Fox News and MSNBC, senior White House official Dan Bartlett argued that Senate Democrats should follow the precedent set by Supreme Court Justice Ruth Bader Ginsburg's 1993 confirmation when they consider President Bush's Supreme Court nominee. Bartlett said that Ginsburg received near-unanimous support from Senate Republicans, despite "deep philosophical differences." But news outlets airing Bartlett's comments failed to tell the full story behind the "Ginsburg precedent" -- specifically, that President Clinton nominated her on the recommendation of Sen. Orrin Hatch (R-UT) and that she had established a largely moderate record during her 13 years on the U.S. Court of Appeals for the District of Columbia Circuit, often voting with conservative judges Robert H. Bork, Kenneth W. Starr and Laurence H. Silberman.

On the July 5 edition of Fox News' Special Report, host Brit Hume conducted a solo interview with Bartlett. During the segment, Bartlett stated that the current Supreme Court vacancy represented an opportunity for the Senate to "use the Ginsburg model":

BARTLETT: Justice Ruth Bader Ginsburg was a situation in which Republicans set aside deep political differences with her and voted because she was qualified for the bench. She was a former member -- general counsel for the ACLU [American Civil Liberties Union]. So obviously, there was a political and philosophical difference that many Republicans had with her, but she received over 90 votes. And we think that's the standard and the precedent that could guide us for this process going forward.

Later in the show, Hume adopted Bartlett's claim of a Ginsburg "precedent" in posing a question to the "Fox News All-Star Panel":

HUME: Is there is any chance that we will have the Ginsburg precedent -- that Dan Bartlett described on this program -- followed here? That people will say, "You know, this guy's a judge, I may not agree with him on things, but he's very well-qualified, and therefore I'm going to set these differences aside and we're all going to vote for him."

The following day, on the July 6 edition of Special Report, Washington Times White House correspondent Bill Sammon also cited the "Ginsburg model" during an appearance on the "All-Star Panel." He defined the term as "when all of the Republicans voted for Ginsburg, even though she was really liberal."

On the July 6 edition of MSNBC Right Now, NBC News national correspondent Bob Kur reported that White House aides intend to use "the tactic of precedent" to ensure the Senate approves the upcoming nomination. Appearing above the on-screen text "Pres. Bush Looking at Ginsburg Precedent," Kur stated, "They're going to cite for senators the 1993 nomination by President Bill Clinton of Justice Ruth Bader Ginsburg." He then aired a video clip of Bartlett's comments:

BARTLETT: The most recent precedent with Justice Ginsburg, who received over 90 votes in the United States Senate, this was a situation where a candidate -- a justice -- had deep philosophical differences with many members of the Republican party. They set aside those differences and they voted on their qualifications and that's why she received such broad consensus support from the United States Senate. And we believe that's a model that can be replicated today.

But neither Hume nor Kur informed viewers that Ginsburg's confirmation was not simply a case of Republicans setting aside their ideological differences. Hatch wrote in his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), that Clinton nominated Ginsburg at Hatch's suggestion. Hatch wrote that he had discouraged Clinton in 1993 from nominating then-Secretary of the Interior Bruce Babbitt to the Supreme Court, arguing that "confirmation would not be easy." Hatch then suggested a few possible nominees:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg [sic].

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.

Moreover, Fox News and MSNBC allowed Bartlett to misleadingly highlight the "deep philosophical differences" between Ginsburg and the Senate Republicans at the time of her nomination. But despite Bartlett's emphasis on her prior tenure at the ACLU, neither Hume nor Kur noted that as a judge on the U.S. Court of Appeals for the D.C. Circuit, Ginsburg frequently sided with the court's conservatives.

As the weblog Daily Howler noted, a June 15, 1993, Washington Post article reported that Ginsburg had "straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years" and that her "pragmatic, non-ideological approach" would most likely put her in league with such "centrist-conservatives" as Justices Sandra Day O'Connor and David H. Souter. The Post article cited a study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges than Democrats:

On the D.C. Court of Appeals, to which she was appointed by President Jimmy Carter in 1980, she has become a swing vote. A 1988 computer study by Legal Times newspaper found that she had sided more with Republican-appointed colleagues than Democratic counterparts. In cases that were not unanimous, she voted most often with then-Judge Kenneth W. Starr, who became George Bush's solicitor general, and Laurence H. Silberman, a Reagan appointee still on the court.

On June 27, 1993, New York Times reporter Neil A. Lewis described Ginsburg's judicial style as "resolutely centrist." The article went on to highlight further details from the Legal Times study:

During her 13 years on the appeals court, Judge Ginsburg often sided with the more conservative judges appointed by Presidents Ronald Reagan and George Bush. According to a computerized study of the appeals court's 1987 voting patterns, published in Legal Times, Judge Ginsburg voted more consistently with her Republican-appointed colleagues than with her fellow Democratic-appointed colleagues. For example, in 1987 cases that produced a division on the court, she voted with Judge Robert H. Bork 85 percent of the time and with Judge Patricia M. Wald 38 percent of the time.

Posted In
Government, Nominations & Appointments, The Judiciary
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