A group of congressional Democrats led by Sen. Ed Markey (D-MA) and House Judiciary Committee Chair Jerry Nadler (D-NY) and co-sponsored by Reps. Hank Johnson (D-GA) and Mondaire Jones (D-NY) officially announced on Thursday their proposal to rebalance the Supreme Court, adding four justices in the wake of a series of abusive maneuvers by Senate Minority Leader Mitch McConnell (R-KY) and former President Donald Trump that effectively rigged the court in the GOP’s favor.
But in the telling of Fox’s “news” division, this court expansion proposal is a sudden public emergency — and none of the history behind it, instigated by radical Republican actions to dominate the Supreme Court over the past five years, even seems to exist at all.
How Republicans previously shrank the Supreme Court — for more power
The reason this is all going on is because when Senate Republicans were in the majority, led by McConnell, they made an unprecedented decision in February 2016 to refuse to allow President Barack Obama to appoint anybody to fill the vacancy created by Justice Antonin Scalia’s death. They then refused to even give a hearing to Obama’s nominee Merrick Garland, who was then a federal judge and is now the U.S. attorney general.
McConnell justified this action in supposedly lofty terms at the time, citing the presidential election that was nine months away: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
But in his speech at that year’s Republican convention, McConnell made clear that his motives were far more partisan: “And on that sad day when we lost the great Antonin Scalia, I made another pledge that Barack Obama would not fill this seat. That honor will go to Donald Trump.”
Making it even worse, also in 2016, multiple Republican senators including Richard Burr (NC), Ted Cruz (TX), and the late John McCain (AZ) openly spoke of keeping the seat vacant on a permanent basis or defended the right to do so should Hillary Clinton win the election — thus shrinking the size of the court for reasons of partisan manipulation.
After Trump won the election (while losing the national popular vote), the seat was filled in 2017 by Trump appointee Neil Gorsuch, with McConnell eliminating the Senate filibuster for Supreme Court nominees in order to push his confirmation through.
Republicans went from keeping a seat open in 2016 — to filling it in 2020
And then in 2020, both Fox News and right-wing interest groups hypocritically switched gears in favor of a quick confirmation of Trump nominee Amy Coney Barrett, following the death of Justice Ruth Bader Ginsburg less than two months before a presidential election.
Fox News also mounted a propaganda campaign against the possibility that the Democrats would respond to the egregious abuse of power by expanding the court later on and restoring balance after such raw manipulation. Unfortunately, mainstream media largely deferred to right-wing talking points and even occasionally helped to spread falsehoods about the subject.
This phenomenon of right-wing media dominating and driving the overall media narrative on crucial topics like court expansion is now threatening to repeat itself. According to Media Matters' internal database, from 6 a.m. through 4:30 p.m. EDT on the day House Democrats rolled out their bill, Fox News dominated the discussion on court expansion — talking about it in 21 segments, while MSNBC discussed it in three segments, and CNN only discussed it once.
Fox’s “news”-side anchors painted over all this history
On Thursday’s edition of The Faulkner Focus, the anchor brought on former U.S. Attorney Brett Tolman, and the two proceeded to obfuscate the entire history here.
“Under former President Trump, we saw three justices added — in a different scenario, though,” Faulkner said.
And in another segment, Faulkner highlighted a proposal by House Republicans to pass a constitutional amendment “to try to keep the court at nine justices” and read out a statement from Rep. Mike Gallagher (R-WI) declaring that the Supreme Court “has been comprised of nine justices for more than 150 years.”
At no time did Faulkner mention the time that Senate Republicans radically kept the Supreme Court at only eight members for a year or that many of them were determined to do so indefinitely under a Democratic president.
Indeed, during her interview with Rep. Ken Buck (R-CO), Faulkner skipped over that history in another remark: “Of course, you have a president, President Trump, who under his watch he had three vacancies and he filled them — Kavanaugh, Gorsuch, Coney Barrett. But that's the way it had always been, for 150 years.”
However, Gorsuch was appointed by Trump to a vacancy that did not occur under Trump’s watch — but under Obama’s.
As it turned out, one of the only ways any of Faulkner’s viewers might have learned this history would be from when the network went to the live video feed of the bill’s Democratic sponsors, including Sen. Ed Markey (D-MA).
“The court is broken,” Markey said. “And make no mistake about it, the court is broken because leader Mitch McConnell, his Senate Republican colleagues, and Donald Trump broke it. They violated historic norms governing Supreme Court appointments.”
But by then, viewers would’ve already had a half-hour’s worth of programming to tell them that the supposed power grab was entirely on Democrats’ hands. And this message was coming from Fox’s “news”-side programming.
Later in the afternoon, during The Story with Martha MacCallum, another of Fox’s “news”-side anchors came back with a rebuttal of sorts to Markey.
During an interview with Sen. Lindsey Graham (R-SC), anchor Martha MacCallum commented on the Democratic members’ appearance earlier in the day.
“Sen. Markey seems like — you know, back in 2016, we’ve got a picture here where he’s standing in front a little podium that says ‘We Need Nine’ — during the, you know, right during the Garland situation,” MacCallum said, while Graham could be heard laughing. “Now he’s standing in front of a different sign, he had a different sign made up that says ‘Expand the Court.’”
So now in Fox’s telling, it’s somehow hypocritical to have protested against how Republicans were shrinking the court below nine members for political purposes, and then to later want to take a corrective measure in the wake of those blatant Republican power grabs.
Fox’s “news” division can be counted on just as much as any of the network’s officially billed opinion hosts to play a political spin game of “heads I win, tails you lose.”