Conservatives Defy History With Derision At Obama's Decision Against Attending Scalia's Funeral

››› ››› OLIVIA KITTEL, KATIE SULLIVAN & TYLER CHERRY

Conservative commentators are attacking President Obama's "disgraceful" decision not to attend the late Supreme Court Justice Antonin Scalia's funeral. But there is no historical precedent requiring presidents to do so, and sources close to Scalia's family reportedly support Obama's decision.

Obama To Pay Respect At Supreme Court, Will Not Be In Attendance At Scalia's Funeral

Barack And Michelle Obama Will Attend Memorial Service For Scalia At The Supreme Court. President Obama and First Lady Michelle Obama "will pay their respects to the late Justice Antonin Scalia at the Supreme Court on Friday," according to ABC News. However the president will not attend the funeral mass scheduled for Saturday. Instead, White House press secretary Josh Earnest announced that Vice President Joe Biden and Dr. Jill Biden will attend Scalia's funeral service. [ABC News, 2/17/16]

Conservative Media Have Repeatedly Attacked Obama For Decision Against Attending Funeral

Laura Ingraham: Obama Won't Attend Scalia's Funeral Because "He's Probably Annoyed" Scalia Didn't Attend The State Of The Union. On the February 18 edition of The Laura Ingraham Show, host Laura Ingraham mocked Obama for planning to skip Scalia's funeral, saying it's "at least like 10 minutes" to travel. Ingraham also suggested Obama was "probably annoyed that Scalia didn't come and show up at his State of the Union speeches" and was "one-upping" Scalia by not attending his funeral:

LAURA INGRAHAM: Oh, OK, so Obama's not going to the funeral. He's going to the court. He's sending Biden. Because it's a real long way to travel from the White House to the basilica, that's a really -- that's at least like 10 minutes when you have -- Secret Service can block the whole traffic for you. Oh, come on.

[...]

I think he's probably annoyed that Scalia didn't come and show up at his State of the Union speeches. Remember, Scalia just decided he wasn't going to go. So it's like, oh, gotcha. And you can't get me back because you're not alive anymore. It's like one-upping Scalia on the -- you know what I mean? I'm not kidding, I think that's part of it, he was annoyed that he didn't come. [Courtside Entertainment Group,The Laura Ingraham Show, 2/18/16]

Fox's Andrea Tantaros: Obama's Decision To Skip Funeral "Is Not Presidential." On the February 18 edition of Outnumbered, co-host Andrea Tantaros said President Obama's decision to skip the funeral is "not presidential," after co-host Harris Faulkner noted that Obama would be the first president to "skip the funeral of a sitting Supreme Court justice since 1954." Fox Business host Charles Payne suggested that the president wasn't showing proper respect to Scalia:

HARRIS FAULKNER (CO-HOST): Well that was an opportunity, maybe. President Obama will become the first president to skip the funeral of a sitting Supreme Court justice since 1954. And I say"opportunity" -- Josh Earnest could have said anything other than, well, we'll have to take a look at the schedule, basically.

CHARLES PAYNE: Yeah. Well we do know President Obama's planning a trip real soon to Cuba. We know he's also going to meet with the guy, Deroy, Deray, from Black Lives Matter. I just think there's a certain amount of respect. How can you in one breath say that the Senate should, you know, show a certain amount of decorum, I guess, and go through with a process that he himself didn't want to go through with, and then in the same breath say I'm not going to the funeral of a Supreme Court justice whose ideology I didn't agree with? I mean, he contradicts himself big time there, but we're used to that by now

[...]

ANDREA TANTAROS (CO-HOST): But we've seen him go golfing after the beheading of James Foley. So that reporter's question was on point. Look, President Obama has been the most extra-constitutional president, disrespectful, arrogant of the process, circumventing Congress. He has no leg to stand on when he talks about Republicans flouting the process and flouting the Constitution. As a former constitutional professor, he should understand the implications of skipping the funeral. It is not presidential, as you mentioned, Charles. And he has ignored so many times the process of how things should work -- when Republicans put legislation forward, he circumvented it. So for him to say I look back and I regret, too bad, so sad. No one takes you seriously because you're a hypocrite and a liar. [Fox News, Outnumbered, 2/18/16]

Fox's Peter Johnson Jr.: Obama Is Saying He Doesn't Want "To Be Associated With" Scalia, Even In Death. On the February 18 edition of Fox & Friends, Fox contributor Peter Johnson Jr. alleged that Obama's decision to skip the funeral was akin to him saying, "I don't want to be associated with Justice Scalia in life and I'm not going to be associated with him in death." Johnson also said that President Obama should "walk the walk" and attend Scalia's funeral to "face his own hard-left Democratic critics" who have previously attacked Scalia:

PETER JOHNSON JR.: Politics, politics, politics. It lives even in death.

STEVE DOOCY (HOST): You think so?

JOHNSON: Unfortunately. We have to remember, Justice Scalia, bless his memory, was a whipping boy for the left Democratic Party. Senator Reid attacked him in December. Nancy Pelosi attacked him in December. The White House attacked Justice Scalia in December. Based on comments and a question he was asking in a Supreme Court hearing, in December with regard to affirmative action in Texas. John Lewis called him a racist. And so this president is saying, "I don't want to be associated with Justice Scalia in life and I'm not going to be associated with him in death." Now, that's an intensely personal viewpoint that he apparently has. He hasn't said it, he's said all the right things when Justice Scalia died,but there's a greater issue in my mind. The greater issue is again politics, is again the country, is again bringing people together, is again honoring the service of a man you may have disagreed with in life but honor in death. So will the president only talk the talk or will he walk the walk and face his own hard-left Democratic critics who said, "Why did you go to Justice Scalia's funeral? And he should say, "I went because it was the right thing to do, we honor Americans who serve, especially Supreme Court justices."

DOOCY: Absolutely. Because he -- Scalia gave his life to public service. And now, I mean, Joe Biden and his wife Jill are going to be in attendance at the funeral. But if the president -- if your hunch is right and he's skipping it because of politics that's -- that's not good. [Fox News, Fox & Friends, 2/18/16]

Megyn Kelly: Obama "Refuses" To "Set The Example," Even Though "I Find No Precedent" For Him Not To Attend. On the February 17 edition of The Kelly File, host Megyn Kelly criticized Obama, saying, "I find no precedent for this in history, that a sitting U.S. president would not attend the death of a sitting Supreme Court justice." Fox's Dana Perino agreed, saying Obama "fails to practice what he preaches" and that even if she was "trying to be charitable ... my argument falls apart. I think the president clearly doesn't want to go":

MEGYN KELLY (HOST): I find no precedent for this in history, that a sitting U.S. president would not attend the death of a sitting Supreme Court justice. Why wouldn't he go? The White House says he has no plans on Saturday.

DANA PERINO: If I'm trying to be charitable, maybe it's because he didn't want to be a distraction at the funeral. But even when I try to be charitable like that, my argument falls apart. I think the president clearly doesn't want to go. The staff wasn't able to tell him, no you really should go. And I think there's lots of reasons he should go. One of them is that he's only going to be president for the next nine months. Participate. He's going to miss being president of the United States and this is one of those things where you participate and you lead, in my opinion.

KELLY: And you set the example. You show the country that even though you have these ideological divisions, you can pay respect to somebody like this, who served his country honorably for 30 years. And yet, despite the president's commitment to doing that, that we heard in the State of the Union and earlier last week, he refuses for some reason.

PERINO: The president said that one of his regrets was that he wasn't able to bridge partisan divides. And then he fails to practice what he preaches. This is an easy thing to do. It takes an hour out of your day. It would be the right thing to do. And you make a good point, he was a justice for 30 years on the bench. He was a public servant. He had dedicated his life to this country. And liberals and conservatives have both been praising him as a jurist. You can disagree with his opinions.

KELLY: The biggest liberal on the U.S. Supreme Court, or at least one of them, Justice Ruth Bader Ginsburg, loved this man, and she will be there. And she could see past the ideological division. He's the commander-in-chief. [Fox News, The Kelly File, 2/17/16]

Sean Hannity: It's "Disgraceful" That Obama Will "Snub Scalia's Funeral." On the February 17 edition of The Sean Hannity Show, host Sean Hannity attacked Obama, saying, "I think this is disgraceful that Obama's going to snub Scalia's funeral." Guest Jamie Dupree admitted he didn't "know what the usual thing is as to whether a president goes or not," but agreed that "It would seem like an easy thing to do":

SEAN HANNITY (HOST): I think this is disgraceful that Obama's going to snub Scalia's funeral. It was in the Politico today, he's not going to attend --

JAMIE DUPREE: I don't know what the -- I don't know what the usual thing is as to whether a president goes or not.

HANNITY: Well, the most recent member of the Supreme Court to die was former Chief Justice William Rehnquist. George W. Bush not only attended the funeral, but he eulogized Rehnquist.

DUPREE: It would seem like an easy thing to do. [Premiere Radio Networks, The Sean Hannity Show, 2/17/16]

Media And Experts Say It Is "Not Out Of The Ordinary" For Presidents To Not Attend A Justice's Funeral

Historically, Presidents Have Not Always Attended Funerals Of Supreme Court Justices, Regardless Of Whether The Death Occurred While Serving. According to a Media Matters analysis, sitting presidents attended four of the funerals of 10 Supreme Court justices who have died since June 1, 1980 -- including justices who died while serving and those who died after serving on the bench.

Politico: "People Close To The Scalia Family Said Obama Was Making The Right Choice"; "There's Not Substantial Historic Precedent For Presidents Attending The Funerals Of Sitting Justices." A February 17 Politico article noted that "people close to the Scalia family said Obama was making the right choice," and further explained that "There's not substantial historic precedent for presidents attending the funerals of sitting justices." Politico cited Ed Whelan, a former Scalia clerk, who said "'I wouldn't have expected President Obama to attend the funeral Mass, and I see no reason to fault him for not attending'":

In spite of the criticism, people close to the Scalia family said Obama was making the right choice. "I wouldn't have expected President Obama to attend the funeral Mass, and I see no reason to fault him for not attending," said Ed Whelan, a former Scalia clerk who now heads the Ethics and Public Policy Center. "The ceremony at the Supreme Court seems the most apt opportunity for the president to pay his respects, but he obviously might have severe competing demands on his time."

There's not substantial historic precedent for presidents attending the funerals of sitting justices. President George W. Bush not only attended, but also eulogized Supreme Court chief justice and fellow conservative William Rehnquist in 2005. But before him, the last justice to die in office was Robert H. Jackson in 1954. [Politico, 2/17/16]

CBS News: Scalia's Death "Marks Only The Second Time In More Than 60 Years That An Active Justice Has Died." CBS News reported February 15 that Scalia's death is "a statistical rarity for the Supreme Court," explaining that only one other justice has died while serving on the bench in the last 60 years:

Justice Antonin Scalia's death Saturday at the age of 79 marks only the second time in more than 60 years that an active justice has died.

[...]

Chief Justice William Rehnquist, who had thyroid cancer, died in office at age 80 in 2005. Before that, the last justice to die in office was Justice Robert H. Jackson, who died in 1954 of a heart attack at age 62.

Of the approximately 100 justices who have served on the court and left, a little fewer than half have died while still holding the position. [CBS News, 2/15/16]

AboveTheLaw.com: "It's Really Not Out Of The Ordinary For A President To Not Attend The Funeral Of A Supreme Court Justice." AboveTheLaw.com's Joe Patrice explained February 17 that "it's really not out of the ordinary for a president to not attend the funeral of a Supreme Court justice," and "recent history reveals a mixed bag when it comes to attending these funerals":

Or maybe it's just not that uncommon for sitting Presidents to skip Supreme Court funerals and we all need to chill out.

There will be a lot of sanctimonious complaining about this decision -- even among those who don't buy into the conspiracy theories -- but recent history reveals a mixed bag when it comes to attending these funerals.

Perhaps because President Bush the Younger attended Chief Justice William Rehnquist's funeral and he was the most recent Supreme Court funeral we've had, everyone has the impression that it's the norm. But it's not really.

Vice President Biden will attend Scalia's service. Which is better than what Justices Harry Blackmun and Lewis F. Powell Jr. got -- Bill Clinton and Al Gore skipped both of those. And that's not a partisan slight -- I don't recall Bush or Cheney making it to Byron White's funeral.

Bill Clinton made it out to Chief Justice Burger's funeral, as well as that of Justice Brennan. But no less a titan of the bench than Justice Thurgood Marshall only rated a Veep in attendance, with Al Gore serving as the White House emissary.

The point is, it's really not out of the ordinary for a president to not attend the funeral of a Supreme Court justice. [AboveTheLaw.com, 2/17/16]

U.S. News & World Report: The Sitting President Has Not Always Attended Funerals For Supreme Court Justices Who Have Died During Their Term. U.S. News & World Report explained February 17, "In recent years, the sitting president has often - but not always - attended funerals of justices who died during his term":

In recent years, the sitting president has often - but not always - attended funerals of justices who died during his term.

At his funeral, Rehnquist was eulogized by former President George W. Bush. Former President Bill Clinton attended the funerals of Justice Thurgood Marshall, Chief Justice Warren Burger and Justice William Brennan, but did not attend the funerals of Justice Harry Blackmun or Justice Lewis Powell Jr.

Three other justices have retired from the court since Rehnquist's death: Sandra Day O'Connor, Stephen Breyer and David Souter. All three are still living. [U.S. News & World Report, 2/17/16]

NY Times: "History Provides Conflicting Clues" About Whether "Historical Precedent" Exists For A Presidential Funeral Attendance. A February 18 New York Times article explained that "funerals of other justices have passed without the presence of either the president or the vice president," noting that "history provides conflicting clues about whether a presidential visit to the funeral is appropriate." The Times article also cited Whelan, who "said that Mr. Obama made the right decision," adding that "For Catholics, a funeral Mass is first and foremost a funeral, not an event of state":

The White House on Thursday tried to fend off criticism of President Obama's decision not to attend the funeral this weekend of Justice Antonin Scalia, but even some administration allies lamented the move as a missed opportunity to ease the partisan warfare that has followed the justice's death.

[...]

But Ed Whelan, the president of the Ethics and Public Policy Center, who once clerked for Justice Scalia and shares the same faith, said that Mr. Obama made the right decision. Mr. Whelan emphasized that traditional Catholic funerals are deeply religious affairs during which even eulogies are discouraged.

"For Catholics, a funeral Mass is first and foremost a funeral, not an event of state," Mr. Whelan said.

The Supreme Court gives great deference to historical precedent, but history provides conflicting clues about whether a presidential visit to the funeral is appropriate.

While President George W. Bush attended the funeral in 2005 of Chief Justice William H. Rehnquist, who was the last justice to die while on the bench, funerals of other justices have passed without the presence of either the president or the vice president.

Michael Moreland, a law professor at Villanova University who is Catholic and was on the White House staff of Mr. Bush, said both sides had valid points.

The event on Friday at the Supreme Court is the more appropriate place for a presidential visit, he said, but Mr. Obama's attendance at the funeral "could have been a nice occasion for reducing polarization of D.C.'s political culture." [New York Times, 2/18/16]

President Eisenhower Sent Flowers To 1954 Funeral Of Justice Robert H. Jackson, The Most Recent Justice To Die In Office After Rehnquist. A Chicago Tribune article about Associate Justice Robert H. Jackson's October 1954 funeral did not report that President Dwight D. Eisenhower attended; instead, it was reported that Eisenhower sent "a cross of white carnations" that was laid "beside the coffin." [Chicago Tribune, 10/13/54]

METHODOLOGY: Media Matters searched Nexis for New York Times articles dating back to June 1, 1980, (the first available date in the Nexis database) for reporting on the funerals of past Supreme Court justices to see whether sitting presidents had attended. The search terms, run individually for each justice mentioned, included "president" and each justice's name, with a date range spanning the calendar year of the justices' deaths. When the Times had no results, the search was expanded to "Major Newspapers." No funeral reporting was found for Justices Arthur Goldberg and Abe Fortas.

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