“Overturning Roe vs. Wade by an all-male majority, two of whom have had credible accusations of sexual misconduct lodged against them, would not be a legitimate action.”
—–ABC correspondent Terry Moran, on an ABC news broadcast, as he discussed what would happen to the nation’s highest court if the Senate confirms Supreme Court nominee Brett Kavanaugh,
It doesn’t get much worse than this. The statement is irresponsible, unfair, ignorant, partisan, incompetent, inflammatory and untrue. It involves multiple distortions of law and fact. It is an opinion presented as fact by an individual lacking the credentials or authority to issue such an opinion. It also encourages defiance of lawful authority.
Moran is a journalist, trained as a journalist and as nothing but a journalist. His current role at ABC is as a foreign correspondent. He is no lawyer, and apparently has no idea what a conflict of interest is. For him to use his air time to make such a pronouncement, sure to be sucked up by the eager, empty brain cells of social media junkies everywhere, is an abuse of his position and influence. That is, however, what he and his colleagues increasingly call “journalism” in 2018. It isn’t journalism, not the ethical kind. It is propaganda, and worse.
For the sake of brevity, since these are major misrepresentations that could each be the subject of scholarly essays, allow me to just bullet point them:
- More fake news, Future and Psychic News Division. Why is Moran talking about Roe v. Wade being overturned? There is no case before the Supreme Court that would do that. There is no pending case in the system that would lead to that. None of the sitting justices or Kavanaugh have argued that Roe should be overturned, and the conservative justices have all declared their fealty to the concept of stare decisus, in which established SCOTUS decisions are regarded as settled law except in extraordinary circumstances.
For a broadcast journalist to discuss a remote hypothetical—and it is remote by definition, since none of the conditions necessary for it to occur appear to exits—is brazen fear-mongering and misleading the public.
- More fake news, Future and Psychic News Division, Part II. Then Moran forsees what individual Justices will decide in this imaginary case that hasn’t been argued, or briefed. In this he reduces the Supreme Court, which analyzes difficult questions of law, to a group of agenda-driven knee-jerk hacks, which they are not.
Journalists like Moran are the agenda-driven knee-jerk hacks, and at least in his case, are unable to imagine anyone else treating important controversies objectively
- Gender stereotyping. There is no justification for assuming that a male justice would automatically vote to overturn Roe, and the assumption is historically ignorant. After all, an all-male SCOTUS majority established Roe.
Moran also assumes that no woman on the Court would vote with the male members even if the particular facts and law related to the imaginary, hypothetical future case that may never exist required an honest, objective female Justice to do so. This is simple-minded, biased thinking that reduces both genders to their lowest common denominators.
- The misleading word, “credible.” “Credible” means “capable of being believed” by itself. I could state here that I am five foot three inches tall and once worked as Latin tutor to make extra money in school. Those are both credible claims: there’s nothing that makes them unbelievable. They are also untrue. Being credible is not the test for whether any statement of evidence should be believed, and in any dispute, such statements must be considered in the context of other evidence. Brett Kavanaugh’s denial is also credible, except to those who have a vested interest in disbelieving it.
In this nation, and in any just society, we do not make judgments about people based on “credible accusations.” The accusations must be corroborated and substantiated to some extent. Dr. Ford named witnesses, and none of them have confirmed her story. That does not make her accusation incredible, but no conclusions can be drawn from it either.
- There’s no conflict of interest. I don’t know what tortured definition of conflict of interest Moran thinks he knows, but whatever it is, it doesn’t exist in law or ethics. I’m assuming that a conflict is what he thinks would undermine the legitimacy of his imaginary, future hypothetical SCOTUS decision. If mere gender created a conflict, then neither women nor men could consider abortion cases. Blacks couldn’t rule on civil rights cases. Motherhood, fatherhood, whether a judge had an abortion or chose not to have one, these at most create biases, not conflicts, which occur when a judge’s current tangible, real life, current interests will be affected by a decision he or she is obligated to make. Judges are pledged to ignore their biases, not to never have them. All human beings have biases; judges are professionally trained and obligated to do a better job than the rest of us recognizing them and overcoming them.
Moran is advancing one more toxic and unethical Democratic talking point, which we will hear repeatedly if Kavabaugh is confirmed. Since Democrats so viciously abused him during the hearings, and he made it clear that he found the treatment infuriating, he will be conflicted out of any case that involves a political controversy in which Democrats have a stake. It’s a great theory, don’t you think? As long as Democrats behave as miserably toward a conservative SCOTUS nominee as they have toward Kavanaugh, they have nothing to fear when he’s on the bench: he’s conflicted! False. Strong emotional animus regarding a party is only a conflict if the professional is unable to put it aside. SCOTUS justices are the best of the breed, and they are presumably able to handle this essential job skill.
- If the Supreme Court is legitimate, then its decisions are legitimate. “Would not be a legitimate action” is the language of “the resistance,” and it incited defiance of the law and the Constitution, as well as civil disorder. Why is ABC News doing this? (Moran was not suspended or disciplined for his irresponsible, bigoted and partisan statement.) The theory of the “resistance” is that Donald Trump’s election wasn’t “legitimate,” and thus his Presidency isn’t “legitimate,” so they are justified in defying his authority. They have no valid claim for this, of course: its a bootstrap argument, resulting in a two-year quest (so far) to find something substantial that would render Trump’s election null and void. Meanwhile, “the resistance,” now essentially including the entire Democratic Party, possessed by The Dark Side, behaves as if its case is already proven.
At his website The American Thinker, former Harvard and Columbia professor Thomas Lifson flags Moran’s rhetoric as approaching sedition.
“Merriam-Webster, for example, defines sedition as “incitement of resistance to or insurrection against lawful authority,” he writes. Here’s the video of Moran:
Lifson continues: “If Judge Kavanaugh is confirmed, and if Roe v. Wade were found unconstitutional by a future Supreme Court including him and Justice Thomas, that would be “lawful authority,” no matter what Moran thinks. If he continued to advocate resistance to a Supreme Court decision, then he could face legal jeopardy. The point here is that it is irresponsible to proclaim any kind court decision illegitimate, particularly as so many people use the word “resistance” in the current environment.”
Lifson also asks if ABC is going to let this pass. Obviously so. It is one more step toward advocacy of direct defiance to the elected government and the Constitution by the mainstream media.