As part of their coverage before and immediately after the October 31 Supreme Court nomination of federal appeals court judge Samuel A. Alito Jr., CNN and National Public Radio (NPR) featured commentary from Lawrence Lustberg, a criminal defense lawyer and acquaintance of Alito who claimed on NPR that Alito "will not overrule precedent lightly" and who on CNN openly supported the nomination. However, neither NPR nor CNN challenged Lustberg with prior statements he has made about Alito, in which he referred to Alito as an "activist conservatist judge" who is "very prosecutorial from the bench."
Lustberg is an attorney for Gibbons, Del Deo, Dolan, Griffinger, and Vecchione, a New Jersey law firm. In both his CNN and NPR appearances, Lustberg described himself as "liberal."
Prior to the official announcement of the nomination, NPR's Morning Edition hosted Douglas Kmiec, former head of the Office of Legal Counsel in the Reagan and George H.W. Bush administrations, who said Alito "is someone who, I think, the conservatives will be happy with, but I think Americans in general will be pleased with when they get to know him." NPR then interviewed Lustberg, who claimed that Alito "has an institutional commitment to the law," and "will not lightly overrule precedent." NPR did not challenge either interviewee or feature anyone who presented a different viewpoint of Alito's jurisprudence.
Immediately following President Bush's official announcement of Alito's nomination, CNN's American Morning featured commentary from Gary Bauer, a former Republican presidential candidate and president of American Values, who said of the nomination: "I think the president hit a grand slam home run here," and "I'm looking forward to helping in any way I can to get Judge Alito on Supreme Court." Later, CNN interviewed Lustberg, who endorsed the nomination. When asked by CNN anchor Soledad O'Brien, "Would you like to see him confirmed?" Lustberg answered: "You know, I guess I would." He went on to say, "I believe that Justice Alito would be a good justice, but I do think that we all have to do the kind of searching that people are calling for it to understand fully his ideology, because that ideology will certainly guide his decision-making." Regarding Alito's judicial temperament, Lustberg said:
LUSTBERG: I don't think there can be any question that Judge Alito's ideology is a conservative one. While I don't think he's the kind of guy, because of his respect for the institution of the judiciary, who would seek to overturn precedent in a radical sort of way, I do think he has the creativity and, indeed, the intelligence to chip away at existing precedents in a way that I think some of us will regret over the years.
Neither NPR nor CNN's O'Brien asked Lustberg about prior statements he has reportedly made about Alito. A July 19 U.S. News & World Report online profile of Alito quoted Lustberg referring to Alito as "an activist conservatist judge," adding: "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a [former Chief Justice William] Rehnquist as a [Associate Justice Antonin] Scalia trait."Aside from Bauer and Lustberg, American Morning featured no other guests commenting on the Alito nomination. Morning Edition later presented the "conservative perspective" on the nomination from Jay Sekulow, chief counsel for the American Center for Law and Justice; and the "liberal perspective" from Marcia Greenberger, founder and co-president of the National Women's Law Center.