It would be extremely beneficial for the culture and enlightened civic discourse if there were a trustworthy, reliably objective observer with integrity and intelligence to provide fair, forceful pronouncements on the political controversies of the day. Such an observer would have to be seen as free of partisan and ideological bias, or at least show signs of actively trying to counter their effects. This, of course, is the idealized concept of what competent and ethical journalism is supposed to provide, and to the extent that any journalism organization was deemed capable of providing it, the New York Times was it.
Yesterday, the Times editors published an editorial called “The Stolen Supreme Court Seat” that was so partisan in tone and inflammatory, not to mention ridiculous, in content that it could only be taken as a biased political screed. Worse than that for the long term, however, is that the piece decisively disqualifies the Times as an arbiter of complex national issues whose judgment can ever be trusted as genuine and persuasive. Many will argue that the Times’ biases have been blatant and unrestrained for many years, and this is true. That New York Times editorial may not be the first smoking gun, but it is the smokiest yet.
Do recall that Ethics Alarms substantially agreed with the Times in its main point that the Republican Senate’s refusal to hold hearings and consider President Obama’s nomination of federal judge Merrick Garland to fill the Supreme Court seat vacated last year with the sudden death of Justice Scalia was unethical:
“For Senate Republicans, holding hearings on President Obama’s qualified and moderate nomination for the Supreme Court is both the ethical course and the politically smart course. It is also in the best interests of the nation. In fact, the Byzantine political maneuverings by the President and the Republican leadership, by turns petty and ingenious, have handed Republicans a political chess victory, if only they are smart enough, responsible enough, and patriotic enough to grab it. Naturally, they aren’t.”
Note: unethical, but not illegal or unconstitutional. By using the inflammatory term “stolen” implying legal wrong doing, the Times intentionally adopted the language of political hacker, and Democratic Party talking points. Strike One: You cannot be trusted as objective and non-partisan when you intentionally endorse partisan rhetoric:
No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat. It was stolen from Barack Obama, a twice-elected president who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge. It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority.
Except that the seat was not “stolen.” Traditions are not laws, and as we will see in a second, the Times has not objected to the shattering of traditions and the engagement of dubious ethical devices when its favorite party was the perpetrator and the Times’ editors’ pet agendas were in play. The Constitution only says that the Senate must “advise and consent” in the President’s nomination of Supreme Court Justices. It never specified that process. It did not, for example, speak about an initial vetting by a Senate Judiciary Committee, or of an American Bar Association verdict on judicial fitness. It also didn’t require an up or down vote as the manner of “consent.” The Senate leadership saying, “Nope, sorry, don’t like that one; send us another,” is as much a refusal to consent as a vote to reject, and a good argument could be made that Obama’s neglecting to ask the Senate to advise him of acceptable candidates before acting, as is his wont, unilaterally is as much a breach of Founder intent as Mitch McConnell’s vote embargo.
I strongly believe that Obama could have had Garland or another judge of his choosing confirmed if he had been willing to lower himself to the kind of negotiation and horse trading that effective Presidents engage in. Obama can’t or won’t do that; he’d rather duck accountability by claiming that he was “obstructed.” Do you really think that there isn’t any legislation Obama would ordinarily be expected to veto that the GOP wouldn’t have accepted in trade for a moderate new justice like Merrick Garland? Maybe Mitch McConnell is even a bigger fool than I think he is, but this seems very unlikely, particular when he thought, as we know he did, that Hillary Clinton would be the next President and that Garland’s name would be pulled in favor of someone far more radical. Obama made a calculated political choice to leave his selection for SCOTUS as part of the election day referendum.
Would the Times be complaining that Obama’s choice was “stolen” if the Democrats had won a Senate majority as many expected and President Hillary Clinton had pulled Garland’s name in favor of some black, female, gay, gun-rights hating, Citizens United-opposed jurist who would guarantee a strong liberal majority on the Court? Of course not. What happened to Obama’s nominated justice was pure moral luck, rescuing McConnell from having an ugly and stupid tactic blow up in his face like a Wile E. Coyote booby-trap and working out better than any sane Republican dreamed. “Stolen” is misrepresentation—fake news, in fact. A lie.
A desperate and unethical measure worked, so the New York Times is whining. There are good and sound arguments to be used to condemn McConnell’s gambit—the fact that it worked doesn’t make it right—but the Times is ethically estopped from making them, especially this one:
“It certainly obliterates a well-established political norm that makes a functioning judicial branch possible. As Paul Krugman wrote in his column on Monday, institutions are not magically self-sustaining, and they “don’t protect against tyranny when powerful people start defying political norms.”
This is hoot-worthy hypocrisy by both Krugman and the Times, and Ethics Strike Three swinging. Did either protest when Obama and his Justice Department defied their oaths and duties by refusing to defend a still valid law, the Defense of Marriage Act, against a lawsuit? Why no…and that is as horrible a precedent as one can imagine, directly attacking the Rule of Law. Did either protest when the Affordable Care Act was passed by ducking House approval using reconciliation, a parliamentary device never before employed to pass major legislation? No…and this violated “a well-established political norm” that will eventually be used against Democrats, undoubtedly accompanied by screams of indignation—from the Times editors and Krugman. Obama using Executive Orders to alter legislation and nullify standing laws, like those prohibiting illegal immigration? Oh no, obliterating those norms are fine. Social justice, don’t you know!
Up until 1987, the norm was that a President’s choices for the U.S. Supreme Court would be respected and consented to by the U.S. Senate, as long as the nominated judge was honest, competent and qualified. That meant that a consequence of Presidential elections was that a sitting President could fill SCOTUS vacancies as he saw fit, no matter what it did to the Court’s ideological balance. In 1987, however, the Democrat-controlled Senate shattered this norm to block President Reagan’s nomination of D.C. Circuit Judge Robert Bork, a brilliant and intimidating conservative who would be replacing moderate Justice Lewis Powell, presumably shifting the Court rightward. Nobody seriously denied that the brilliant Bork was unqualified, and “by the well-established political norms,” he should have easily confirmed. The Times, however, endorsed the ultimately successful efforts of Senate Democrats to destroy that “norm,” writing in an Oct. 5, 1987, editorial, that the party in control of the Senate has “every right to resist” a President’s Supreme Court nominees:
“The President’s supporters insist vehemently that, having won the 1984 election, he has every right to try to change the Court’s direction. Yes, but the Democrats won the 1986 election, regaining control of the Senate, and they have every right to resist. This is not the same Senate that confirmed William Rehnquist as Chief Justice and Antonin Scalia as an associate justice last year…The division of power thus makes moderates of both parties decisive. Against this change in political reality, for Mr. Reagan to nominate Robert Bork was to stick a thumb in moderates’ eyes…The Senate need not and should not endorse views so alien to the Supreme Court’s honored role as definer and defender of constitutional liberties.”
There is literally no way this position and the one articulated in yesterday’s Times editorial can be reconciled, except by appeal to a double standard based on partisan preferences. This is especially and hilariously true when one considers the Times’ appeal to “constitutional liberties” as sacrosanct. In the last election, the Democratic Party platform called for an amendment to limit the right of free speech, as protected by Citizens United. The Democratic Party is on record as wanting to severely limit the right to bear arms, and to abridge Fifth Amendment rights in order to remove other rights from suspected terrorists without Due Process. In short, the Times demonstrated yesterday that it has no integrity, and worse, doesn’t understand that integrity is required to engender trust.
The editorial is correct in its general proposition that Merrick deserved hearings and a vote, but completely unpersuasive because the Times position issues, not from objective analysis, but from pure hypocrisy. We know that the Times would not similarly protest an unethical stratagem identical to McConnell’s if it successfully derailed the nomination of a conservative judge. We know that the righteous appeal to preserving “well-established political norms” would never be invoked if a progressive goal was at risk, because we have seen the Times nod approvingly when the Obama Administration and Democrats have stomped on such norms again and again.
Thus we know that the New York Times, having recklessly proclaimed its absence of integrity and proven that vacuum beyond all doubt, cannot be trusted to provide any objective analysis or guidance. Ever. Ever, that is, until it takes remedial measures, such as acknowledging its inconsistency, apologizing sincerely to readers for abusing their trust, and striving in the future to write editorials based on fair and objective analysis rather than lock-step compliance with partisan talking points.