With Senate Judiciary Committee hearings for Supreme Court nominee John G. Roberts Jr. set to begin on September 6, and media coverage of Roberts about to again heat up, conservatives will doubtlessly look to pave the way for an easy confirmation process by continuing to misrepresent Roberts's record and suppress any attempt at scrutiny of the nominee. With that in mind, Media Matters for America presents conservatives' major falsehoods and distortions conservatives have pushed, which repeated or quoted without challenge, since we last documented the "top Supreme Court myths, falsehoods, and distortions" in July.
The "Ginsburg precedent," back with a vengeance
In recent weeks, mainstream news outlets such as the Los Angeles Times and reporters such as U.S. News & World Report contributing editor Gloria Borger have repeated, or quoted without reservation, the White House spin that Roberts should be accepted by Democrats as the Ruth Bader Ginsburg of the right -- i.e., the claim that while Roberts is clearly conservative, current Justice Ginsburg was equally liberal and was nonetheless strongly supported by Senate Republicans during her 1993 confirmation hearings.
But the comparison between Roberts and Ginsburg is false. Ginsburg established a largely moderate judicial record on the U.S. Court of Appeals for the District of Columbia Circuit prior to her nomination to the Supreme Court, and the perception of Ginsburg as a centrist was widely reported at that time. Further, according to Sen. Orrin Hatch (R-UT), who was ranking minority member of the Senate Judiciary Committee at the time, he recommended Ginsburg to President Clinton in the first place.
Conservatives seek to brush aside questions about Roberts's views on abortion
Conservatives have employed several tactics in hope of allowing Roberts to avoid giving any definitive indication during his confirmation hearings of how he would rule on Roe v. Wade, the landmark 1973 decision protecting the right to abortion. One tactic has been to falsely claim that Roberts has already signified he would not overturn Roe as a Supreme Court justice regardless of his personal views on abortion, and there is no need for him to answer further questions on the topic. The second approach has been to claim is that there is no precedent for Roberts revealing his personal view of abortion or how he would rule on it prior to being confirmed. Both of these erroneous assertions have seeped into the mainstream media's coverage of Roberts's views on abortion.
Conservatives such as Fox News host Bill O'Reilly have claimed that Roberts has already indicated that he would preserve Roe, citing Roberts's pledge at his 2003 appellate court nomination hearing to "fully and faithfully apply" Roe as the "settled law of the land." Many news reports have provided a similar interpretation of Roberts's "settled law" remark, including NBC News justice correspondent Pete Williams and a Washington Post article that equated it to Justice Stephen G. Breyer's statement at his 1994 Supreme Court nomination hearing that Roe "has been the law for 21 years." Such claims imply that because Roberts may be able to set aside his personal views on abortion to follow the law, he will be able to do so in a broad range of policy areas.
But the media have failed to note that Roberts's description of Roe as "settled law" in the context of an appellate court nomination indicates nothing about whether he would vote to uphold the decision if confirmed to the Supreme Court. Attorney General Alberto R. Gonzales has pointed out that asking a circuit court judge if Roe is "settled law" is a "different question" than asking it of a Supreme Court nominee because unlike an appellate judge, "a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."
The claim that Roberts should be under no obligation to answer questions about abortion again relies on Ginsburg, whom media outlets such as The New York Times have erroneously suggested was allowed to skirt questions on the topic during her confirmation hearings. But while it's true that Ginsburg refused to address specific abortion-related cases during her hearing, she did explicitly affirm her general commitment to protecting the right to an abortion, a right she deemed "central to a woman's life, to her dignity." As USA Today reported on August 31, Gonzales believes it would be "appropriate" for the Senate Judiciary Committee to ask Roberts for his personal views on abortion.
Forwarding the Bush administration's rhetoric, reporters such as CNN host Miles O'Brien have repeated conservatives' characterization of Roberts as a "strict constructionist," thereby promoting a misleading dichotomy between "strict constructionists" and "judicial activists."
But while conservatives have neither provided a substantive definition of a "strict constructionist" nor provided a justification for their suggestion that Roberts is the opposite of a judicial activist, a recent study by Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder suggests that those Supreme Court justices often labeled strict constructionists -- or, more accurately, "originalists" or "textualists," who purport to discern and apply the true original meaning of constitutional provisions -- are the real judicial activists. By that standard, Justices Clarence Thomas and Antonin Scalia, the very "strict constructionists" to whom conservatives have compared Roberts, are among the most activist.
Similarly, a New York Times editorial cited Roberts's dissent in an Endangered Species Act case as evidence that Roberts might be an activist in the sense that he may vote repeatedly to strip Congress of the authority to pass legislation in a number of different areas. Even Sen. Arlen Specter (R-PA), chairman of the Senate Judiciary Committee, decried the Supreme Court's activism of late in usurping congressional authority and expressed hope that Bush would nominate "somebody" who would be "a swing vote."
Conservatives claim opponents have made an issue of Roberts's Catholicism
In an effort to undermine criticism of Roberts, some conservatives have portrayed as anti-Catholic concerns that Roberts is unwilling to separate his extreme views from his interpretation of the law. For example, Fox News host Sean Hannity has maintained that media outlets and potential opponents of Roberts have inappropriately focused attention on Roberts's Catholic faith and the role it would play in his decision-making.
But as of July 26, of the approximately 200 instances Media Matters identified in which media mentioned Roberts's religion, more than 50 were instances of Roberts's supporters touting his Catholic faith or baselessly attacking Democrats for alleged anti-Catholicism, a number roughly equal to the approximately 50 instances in which news reports independently raised the question of whether Roberts's religion would influence his actions on the court. By contrast, Media Matters found only 16 reports of Democrats or Roberts critics questioning how his religion might influence his decision-making on the court, of which 14 were references to a question Sen. Richard J. Durbin (D-IL) allegedly asked during a meeting with Roberts. Numerous media outlets have focused significant attention on Durbin's purported query while ignoring a similar question posed to Roberts by Republican Sen. Tom Coburn (OK).
Media echo GOP spin that Democrats will attack Roberts to satisfy their liberal base
Some media, such as Washington Post staff writer Mike Allen, have echoed Republican National Committee chairman Ken Mehlman by suggesting that the Democrats will subject Roberts to tough scrutiny merely to appease their liberal base. But there is another reason that both Democrats and Republicans might want to question Roberts: Because the Constitution mandates an advice-and-consent role for the Senate in the appointment of judicial nominees, a responsibility recognized by Judiciary Committee chairman Specter, who has indicated he will ask Roberts tough questions during the confirmation hearings.
On a related note, news reports by outlets such as The New York Times and The Washington Post have emphasized the active role progressive interest groups are taking in pressuring Democrats to oppose Roberts, without giving similar scrutiny to the efforts of conservative groups to promote him.
But when reports surfaced that Roberts assisted lawyers for gay-rights activists in a case before the Supreme Court, two conservative leaders who had criticized Democrats' efforts to gather information on Roberts called for a thorough vetting of the nominee to ensure that he is sufficiently conservative. The Family Research Council reacted to the revelation that Roberts assisted in the case by assuring his members that FRC will be "heavily involved in the confirmation hearings." Similarly, Focus on the Family founder and chairman James C. Dobson reacted to the news by stating that "Republicans have an obligation" to find out what Roberts's "judicial philosophy is."
Further, the numbers suggest that conservative groups have spent far more money in the nomination battle than progressives have thus far; the Brennan Center for Justice at New York University School of Law and the Justice at Stake Campaign noted that through August 21, the conservative group Progress for America had spent nearly eight times more on television advertising supporting Roberts than groups opposing his nomination.
Conservatives have defended the White House's decision to withhold all documents pertaining to Roberts's tenure as the Justice Department's deputy solicitor general under President George H.W. Bush by claiming that such requests are unprecedented. For example, on the August 24 edition of Fox News' Hannity & Colmes, co-host Sean Hannity declared: "They're [Democrats] demanding documents that no other nominee has ever had to turn over here."
Sen. Patrick Leahy (D-VT) has cited numerous examples of previous administrations turning over Justice Department documents during Senate nomination proceedings, including those of Chief Justice William Rehnquist and former Supreme Court nominee Robert H. Bork. Leahy argued that these examples provide sufficient support for Democrats' request for withheld Roberts documents. Nonetheless, many news reports cited the principal Republican arguments for confidentiality while omitting Leahy's claim of precedent.