President Bush's selection of John G. Roberts Jr. for the Supreme Court seat vacated by Sandra Day O'Connor set off a predictable flood of distortions of Roberts's background and positions on key legal issues.
News outlets, including NBC, CBS, Fox News, CNN, USA Today, and The New York Times, repeatedly noted Roberts's pledge at his 2003 appellate court confirmation hearing to "fully and faithfully apply" Roe v. Wade as the "settled law of the land," portraying that pledge as evidence that he would vote to uphold Roe if confirmed to the Supreme Court. But, as an appellate court nominee, Roberts had little choice but to call Roe the "settled law of the land," and that pledge says little about how he would vote on the Supreme Court, as Media Matters explained:
As an appellate court judge, the position to which he was "applying" in 2003 when he pledged to follow the law, Roberts is bound to adhere to Supreme Court precedent or face possible reversal on appeal. But as a Supreme Court justice, he would be in a position to vote to overturn Roe, or any other Supreme Court decision with which he disagreed, no matter how "settled." In the words of The Wall Street Journal (subscription required), the upholding of binding precedent "is required of lower-court judges," and therefore Roberts's comment "seems to leave open the possibility that he could vote to overturn Roe as a high-court justice."
Also this week, Media Matters detailed and corrected the top Supreme Court myths, falsehoods and distortions:
1) Robert Bork was "smeared" when he was nominated for the Supreme Court.
2) Democrats will oppose any nominee President Bush picks.
3) In questioning nominees, Democrats will treat them with disrespect and hostility.
4) Roe v. Wade is not threatened by O'Connor's retirement.
5) Democrats should follow "Ginsburg precedent" by accepting a Bush nominee despite significant ideological differences.
6) Democrats are divided on whether ideology constitutes an "extraordinary circumstance" under Senate agreement on filibusters.
7) Bush favors conservatives who will strictly interpret the law over judicial activists who legislate from the bench.
Bush's speech announcing Roberts's nomination drew bipartisan speculation that the announcement, and maybe even the decision, was moved up to distract attention from the growing controversy involving the roles of top Bush administration officials, including Karl Rove, in outing Valerie Plame as a CIA operative. Bloomberg reported on July 20 that "two administration officials" said the nomination was moved up in response to the Plame controversy:
Bush originally had planned to announce a replacement for retiring Justice Sandra Day O'Connor on July 26 or 27, just before his planned July 28 departure for a month-long vacation at his Crawford, Texas, ranch, said two administration officials, who spoke on the condition they not be named. The officials said those plans changed because Rove has become a focus of Fitzgerald's interest and of news accounts about the matter.
Similarly, a July 19 Wall Street Journal article (subscription only) reported that White House aides "urg[ed] the president to expedite his announcement to deflect attention from a growing scandal over the role of senior administration officials -- including political adviser Karl Rove -- in leaking a Central Intelligence Agency agent's identity to the news media in an effort to discredit critics of the White House's prewar Iraq intelligence." The Journal added, "'The Rove situation has accelerated it,' said a Republican lawyer who consults the White House on judicial issues. 'They would like to get something that will knock it off the front page.' " And according to a July 19 Reuters article, "Sources said the timing of an announcement had been moved up in part to deflect attention away from a CIA leak controversy that has engulfed Bush's top political adviser, Karl Rove."
But Washington Post media critic Howard Kurtz dismissed the notion that the announcement was moved up to distract attention from Rove, suggesting it was simply a liberal conspiracy theory: "The prime-time maneuver also neutralized the blogosphere, although liberals were convinced it was all a plot to knock Karl Rove and the CIA leak story off the front pages." This despite the fact that Kurtz's Post colleagues Peter Baker and Jim VandeHei reported -- the very same day -- that "Some Republican strategists said the nomination could help the White House divert attention from the Rove scandal and reinvigorate Bush's political prospects."
Kurtz wasn't alone in ignoring the widespread, bipartisan questions about the timing of the announcement, as Media Matters noted:
CNN's chief national correspondent John King twice belittled the idea that the White House moved up the nomination to divert attention from Rove. On the July 19 edition of CNN's Inside Politics, King said, "It is ludicrous to think that the president of the United States would rush a decision simply to change the subject." Later, on CNN's Anderson Cooper 360, King said, "The idea that they said, 'Oh my God, we're in trouble because of Karl Rove; we need to rush this' -- I think that's a bit of a stretch." CNN senior analyst Jeff Greenfield similarly brushed off the notion on the July 19 edition of CNN's Wolf Blitzer Reports, saying: "I think we're being a little bit overwrought in thinking that this is a clever move to get Karl Rove off the front page."
In the week since the revelation that even an accidental disclosure of classified information would be a violation of the nondisclosure agreement Rove apparently signed*, media coverage of this aspect of the controversy has been sparse at best.
For example, The New York Times devoted just one paragraph to a memorandum by Rep. Henry Waxman (D-CA) detailing evidence that Rove violated the Nondisclosure Agreement, noting only that it "detail[s] the legal restrictions against disclosing classified information" and "asserts that 'Mr. Rove was not at liberty to repeat classified information he may have learned from a reporter.''' Other major newspapers -- including The Washington Post, The Wall Street Journal, the Los Angeles Times, and USA Today -- did not cover Waxman's memorandum at all. Similarly, the Los Angeles Times and The Washington Post reported Democratic calls to revoke Rove's security credentials without mentioning that specific regulations underlie these demands.
In order to receive a security clearance providing access to classified information, Rove was required to sign Standard Form 312, which includes the recognition that "I have been advised that any breach of this Agreement may result in the termination of any security clearances that I hold."
(* We say "apparently signed" because we have not seen definitive evidence that he signed it. But it is very likely that he did so: Rove had to have signed the form in order to obtain security clearance; countless news reports have taken it as a given that he had such clearance. And with good reason: It is clear that Rove had access to classified information. For example, the February 21, 2005, issue of Newsweek reported that "Rove was a player on Iraq, too. In the run-up to the war, Rove was a full -- and, colleagues say, impressive -- participant in the colorfully named WHIG (White House Iraq Group). The panel members shed their cell phones and BlackBerrys to meet in a secure National Security Council conference room, sifting through classified evidence (much of it now discredited) for data that might win public support for Bush's hard line against Saddam Hussein.")
The most complete report about the nondisclosure agreement came from The Philadelphia Inquirer's Dick Polman:
What's now on record, courtesy of pro-Rove leakers close to the Fitzgerald inquiry, is that Rove confirmed Novak's information by telling the columnist that he had heard the same stuff elsewhere. But that means Rove may have violated the Classified Information Nondisclosure Agreement, a document known as SF 312 that must be signed by any administration official who receives a national security clearance.
Here's a provision: "Information remains classified until it has been officially declassified. ... Before disseminating the information elsewhere or confirming the accuracy of what appears in the public source, the signer of SF 312 must confirm through an authorized official that the information has, in fact, been declassified. If it has not, further dissemination of the information, or confirmation of its accuracy, is also an unauthorized disclosure."
Mehlman, asked about this, said it's wrong to assume that Plame's CIA status was classified. But that remark is contradicted by the record.
In the summer of 2003, Attorney General John Ashcroft's Justice Department -- acting on a request from the CIA -- agreed to launch a probe of the leak because the department agreed with the CIA's argument that Plame's status, as an NOC staffer, had been classified. (This is the investigation that led to the hiring of Fitzgerald, who became a U.S. attorney in northern Illinois as a result of Republican sponsorship.)
But while Polman quoted a relevant provision of Standard Form 312, other media outlets portrayed its requirements as little more than a Democratic assertion. For example, The New York Times' only mention of the matter ignored the form itself, referring instead to a memo circulated by a House Democrat:
In the House, Representative Henry A. Waxman of California, the senior Democrat on the Committee on Government Reform, circulated a memorandum titled ''Karl Rove's Nondisclosure Agreement'' detailing the legal restrictions against disclosing classified information. The memorandum asserts that ''Mr. Rove was not at liberty to repeat classified information he may have learned from a reporter.''
A search of the Nexis database of news reports yields only about a dozen news stories that make reference to Rove's apparent violation of the nondisclosure agreement. Many news organizations were apparently too busy continuing to peddle long-debunked arguments about Valerie Plame's covert status to deal with anything else.
Fox's Carl Cameron claimed, for example, "[Joe] Wilson himself has said that his wife had not been covert since 1997." Wilson has said nothing of the kind. Chicago Sun-Times columnist Mark Steyn wrote, "As ... Wilson ... conceded on CNN the other day, she wasn't a 'clandestine officer' and, indeed, hadn't been one for six years." Wilson conceded nothing of the kind, on CNN or elsewhere.
At least that was (relatively) new misinformation; Washington Times chief political correspondent Donald Lambro was still peddling the irrelevant claim that Karl Rove is in the clear because he didn't say Valerie Plame's name to Time's Matthew Cooper 10 days after Media Matters first debunked it.
Last week, we noted that The New York Times, ABC's Jake Tapper, and others had watered-down the longstanding promise made by President Bush and White House press secretary Scott McClellan that anyone involved in the Plame leak would be fired. That trend continued into the beginning of this week, with CBS and the Los Angeles Times, among others, joining the ranks of news organizations that reported instead that Bush had promised only to fire anyone who was guilty of illegal leaks.
The result? When President Bush backed away from his broad promise this week, saying that he'd fire anyone who broke the law, his reversal (dare we say "flip-flop"?) drew less attention than it might have. After all, Bush is now saying what news outlets had falsely reported he had said previously.
In the very first edition of Media Matters, we noted the absurdity of the storyline that liberals are angry and hateful:
With conservative spinners and pundits promoting the storyline that liberals are "angry" and full of "hate" and "wild-eyed" -- aided by a credulous press corps -- Media Matters for America launched an Internet ad campaign this week to combat this misinformation. "The Right-Wing Squares" Flash animation ad uses actual audio of right-wing commentators like Rush Limbaugh, Ann Coulter, and Bill O'Reilly at their most angry and hateful -- coupled with humorous cartoon caricatures -- to remind people that conservatives, not liberals, are guilty of vitriolic hate speech.
This week brought several new reminders: