Sparring over SCOTUS

By Howard Kurtz
Washington Post Staff Writer
Wednesday, April 14, 2010; 7:58 AM

The shadowboxing over the not-yet-named Supreme Court nominee is getting a bit rough.

Lawmakers, advocacy types and pundits are all sending signals to President Obama about who he should--or shouldn't--choose. The libs want somebody who's acceptably liberal. The Republicans are demanding someone who's in the mythical "mainstream" -- as they define it.

The White House plays the game as well, floating trial balloons about possible nominees to please certain constituent groups and give the impression of a broad search. Most of the names the media are chasing will prove to be ephemeral, but there's no surefire way to know in advance who is really a finalist.

All this amounts to the same sort of invisible primary that takes place before presidential candidates actually jump into the race. This time, the goal is not to persuade New Hampshire voters but the only voter who counts, and that's POTUS. It's conceivable that the pressure campaigns could help sink a potential nominee who was on shaky ground anyway.

Or not. Last May, the New Republic's legal affairs editor, Jeffrey Rosen, published "The Case Against Sotomayor," in which he quoted unnamed former clerks saying the judge was "not that smart and kind of a bully on the bench," as one put it. Obama nominated Sonia Sotomayor anyway, but the piece, which I thought contained unfair anonymous shots, was widely quoted by opponents. (Rosen later decided Sotomayor should be confirmed.)

Now we have Elena Kagan in the line of fire, but not for her temperament or brainpower.

I am surprised to see this hit the Web, but Atlantic's Marc Ambinder, widely regarded as a fair reporter, puts it in play:

"Solicitor General Elena Kagan, the woman who tops President Obama's short list for the Supreme Court, is the subject of a baffling whisper campaign among both gay rights activists and social conservatives: those whispering assume she's gay, and they want her -- or someone -- the media! -- to acknowledge it.

"Why gay rights activists? Because Kagan is a public figure and her appointment would represent an enormous advancement for their cause. And social conservatives? Because she'd fit neatly with their narrow paradigm about gender non-conformity and with their overall suspicion that Obama aims to radically re-engineer society. So pervasive are these rumors that two senior administration officials I spoke with this weekend acknowledged hearing about them and did not know whether they were true. People who know Kagan very well say she is not gay, but that's not the point: why is she the subject of these rumors? Who's behind them? And what do they tell us about politics?. . . .

"Kagan hasn't made matters any easier for people who don't see nuance. She is an active and open supporter of gay rights. . . .

"Given the confusion and rumors about Kagan's sexuality, the issue is bound to come up. It's tough for the media to cover, because reporters have trouble writing openly and honestly about a very contested subject, and because they don't want to appear to be outing anyone."

True. And maybe because a candidate's sexual orientation is none of our business?

At Salon, Glenn Greenwald unloads on Kagan for a very different reason: that she is less liberal than John Paul Stevens:

"Consider how amazing it is that such a prospect is even possible. Democrats around the country worked extremely hard to elect a Democratic president, a huge majority in the House, and 59 Democratic senators -- only to watch as the Supreme Court is moved further [to] the Right?. . . .

"Given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who -- at best -- is a huge question mark, and who could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the president's party supports?. . . .

"Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?"

The expectation is that Republicans will use the nomination, whoever the president picks, to score political points. But Politico says that can work both ways:

"Democrats hope to turn the upcoming Supreme Court confirmation hearings into a referendum of sorts on controversial recent decisions by the Roberts court -- portraying the conservative majority as a judicial Goliath trampling the rights of average Americans.

As President Barack Obama mulls possible replacements for retiring Justice John Paul Stevens, the administration and congressional aides are gravitating toward a strategy that goes beyond the goals of a run-of-the-mill confirmation fight -- to define a corporations-vs.-the-common-man battle between Democrats and the high court.

"In addition to building a defensive perimeter around Obama's pick -- whoever that may be -- Democrats will use the hearings to attack what they view as a dangerous strain of conservative judicial activism espoused by Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas."

Perhaps there's even a super-secret category of potential nominees that's not committed to paper?

"Some people who are also believed to be candidates, including Gov. Deval Patrick of Massachusetts, Interior Secretary Ken Salazar and banking-bailout watchdog Elizabeth Warren, are not on the list," says the L.A. Times.

At Slate, Richard Hasen spoils the fun by casting the coming fight as predictable:

"Barring a bombshell, there will be no filibuster. Democrats and Republicans have mastered the Kabuki dance: The president picks a nominee who has been cautious enough on contested social issues so as not to be plausibly characterized as outside the mainstream. Senators from the opposition party complain that the nominee has not been forthcoming, or is ideologically radical; staff digs for dirt on the nominee's past but finds none. Senators from the president's party rally around the nominee. During the confirmation hearings, the nominee gives milquetoast, noncommittal answers, and comes across as likeable enough with a heartfelt personal narrative. The opposing senators decline to filibuster. The nominee joins the court.

"So it has been with Roberts, Alito, and Sotomayor, and so it probably will be the next nominee. Democrats need only one Republican senator to avert at filibuster, and they will find Sen. Orrin Hatch of Utah or Sen. Olympia Snowe of Maine (and probably a bunch more) likely to allow a vote on a competent nominee who has stayed out of trouble."

I suspect he is right, though whoever is chosen will have some kind of "wise Latina" flap in his or her background.

A Question of Incivility

Back in 2003, I wrote about the New Republic's Jonathan Chait openly declaring his hatred for George W. Bush. Now he says, "It's been cited far more than anything else I've ever written. I have trouble understanding why. The main point of the piece was to counter what was then a commonly-expressed opinion that liberal disdain for Bush was utterly inexplicable."

Responding to a recent WP column by former Bush speechwriter Michael Gerson, Chait says: "I'm not sure what case there is to make that my opinion of Bush wreaked such damage to the fabric of the national discourse.

"Gerson's column compiles together a series of statements under the general rubric on incivility. Along with the shot at yours truly, Gerson upbraids various liberals, including Harry Reid, for calling Bush a 'loser' and a 'liar'; Al Gore, for calling Bush a 'moral coward'; and unnamed anti-war protesters for comparing Bush to Hitler. . . .

"The problem -- and this is the whole problem with the civility obsession -- is that it's hard to formulate a coherent set of standards. Gerson thinks Al Franken belongs outside the realm of acceptable discourse. On the other hand, he thinks Rush Limbaugh -- who regularly whips up racial fears among whites -- belongs within that acceptable discourse. . . . Gerson's standard is deeply informed by his conviction that anybody who considers George W. Bush a bad person is, by definition, a lunatic who should be excluded from respectable discourse."

In fairness, though, Gerson also noted that "Sarah Palin wrote to her Twitter tribe: 'Commonsense Conservatives & lovers of America: Don't Retreat, Instead -- RELOAD!' In a moose-hunting culture, these words probably carry less menace. Palin was not trying to incite violence. But she was careless about the context of her words and ignored a positive duty to confront political extremism."

Shying Away

Mediaite picks up on these comments from Bill O'Reilly, who drew flak awhile back for praising the manners of diners at the Harlem restaurant Sylvia's:

"I, and many other white journalists, now don't do nearly as many reports on African-Americans or their problems because we don't want to be put in a situation where our opinion is taken out of context, rammed down our throat as media matters and all these other sleazeoids do. if it's a big thing or optional thing I'm not doing it anymore. If I go to the a primarily black restaurant very fine in Harlem, I'm not going to say anything about it anymore."

More Massa

The congressman-who-showered-with-Rahm may be gone, but The Washington Post has more on his questionable conduct:

"Just three months after Eric Massa was elected to Congress, his young male employees on Capitol Hill began complaining to supervisors that the lawmaker was making aggressive, sexual overtures toward them, according to new interviews and internal documents. . . .

"This account, drawn from more than two dozen interviews and internal documents, shows that aides were accusing the 50-year-old married lawmaker of far more egregious behavior than previously known. Beginning in March 2009 and over the next several months, male staffers complained that their boss had touched them in a sexual manner, came up with reasons to have staffers travel alone with him on overnight trips, and expressed a desire to have sex with the men in the office."

I'm beginning to see why he didn't answer Larry King's question.

Pulitzer Flap

The Pulitzer board overruled the jury in awarding the drama prize, and the man who chaired that jury--L.A. Times theater critic Charles McNulty--isn't happy:

"In honoring 'Next to Normal,' Tom Kitt and Brian Yorkey's musical about a household grappling with a mother's mental illness, the mandarins at Columbia University's journalism school, where the prizes are administrated, ignored the advice of its drama jury in favor of its own sentiments.

"It's a familiar story, but as chair of this year's jury. . . . I can't help being ticked off. Two points, in particular, rankle: the blinkered New York mentality and the failure to appreciate new directions in playwriting. The board had an opportunity to correct these long-standing shortcomings, and it blew it.

"In an era in which important new dramatic works rarely get their start in New York, the board's geographical myopia, a vision of the American theater that starts in Times Square and ends just a short taxi ride away is especially disheartening. Does anyone really believe that 'Next to Normal' would have been chosen had it been submitted when it was at Arena Stage in Washington, D.C.?"

Um, probably not.

Footnote: After I noted that the Washington Times had managed not to mention The Washington Post's four Pulitzers in its story, the paper's news editor, Victor Morton, e-mailed that he had to trim the piece on deadline and that it "was my fault but it was not an intentional snub of The Post or anyone. . . . I assure you and your colleagues, whom I congratulate on their awards, that I was not acting out some snotty fit, though I realize it may look that way from the outside."

Non-negotiable Demands

Guess which hot GOP speaker insists on pre-screened questions, as well as "two water bottles and bendable straws"?

Hint: She's a former half-term governor.

Clash of the Colleagues

NYT columnist Paul Krugman says that NYT columnist Andrew Ross Sorkin "owes several people an apology" for saying that Krugman, among others, had "declared that we should follow the example of the Swedes by nationalizing the entire banking system." He never said that, Krugman insists, and this amounted to "caricaturing" his position.

Monumental Mismanagement

"New York 1 News director Steven Paulus asked underlings to compare the breast size of all the on-air female reporters -- matching them up one against the other, according to testimony yesterday in a sexual-harassment case against the cable news channel."

Today's Tiger

Like anyone else who watched the Masters, I found it heartwarming to watch Phil Mickelson hug his wife, who's been battling breast cancer, after he defeated Tiger Woods and the rest of the field. But Salon's Ethan Sherwood Strauss says the media went overboard:

"Sportswriters flock to morality narratives -- they don't want to write that outcomes result from a combination of physical prowess and sheer luck. Hero X 'wanted it more,' or at least had better character. What else could explain a man's staggering ability to best put a ball in a hole? Steroids? It's got to be the virtue, and in this case, it's got to be the nuptials.

"I declare the Masters fallout a first for America: This marks the day sports media celebrated an athlete's matrimonial success at the expense of his rival's. Call it ecstatic putt-putt tut-tut. . . .

"Tim Kawakami of the San Jose Mercury News: 'It's an oversimplification, but measuring Mickelson's family situation against Woods' behavior toward his wife (who was not attending) is natural at this point.'

"Yes, and let us build on our recent, bizarre premises. It will only hasten the People magazine-ing of sports entertainment. Kawakami's merely stating the obvious, but that in and of itself is troubling: Why is it 'natural' to compare the marriages? Is this America's new reality show?"

Perhaps because the ratings skyrocketed as people tuned in to watch how the sex scandal and its aftermath would affect Tiger?

Howard Kurtz also works for CNN and hosts its weekly media program, "Reliable Sources."

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