The battle lines are drawn: President Obama will name his choice to succeed Justice Antonin Scalia on the U.S. Supreme Court; Senate Republicans are determined to block it. One aspect has become striking: Which side has the better argument that history supports its position? It turns out, there’s another battle happening there: news versus opinion.
On the same day, February 16, 2016, two of the most widely read newspapers in the world, carried these contradictory headlines:
“In Court Fight, History Backs Obama” appeared in The New York Times.
“No Clear Confirmation Parallels in Recent Court History,” said The Wall Street Journal.
Who’s Right?
Unless you read both newspapers, you wouldn’t think there was any disagreement on the question of historical precedent for filling the current Supreme Court vacancy. The Times article appears on the paper’s op-ed page. But here’s the real kicker: The WSJ carries its version as a straight news item.
The Journal’s readers saw “news” declaring “no clear confirmation parallels” to the present situation. It cites and purports to distinguish only two earlier precedents.
In 1968, the Senate prevented President Lyndon Johnson’s lame-duck appointment of Justice Abe Fortas to succeed the retiring Earl Warren as Chief Justice and the naming of Judge Homer Thornberry to the Fortas seat. Eventually, President Nixon filled those vacancies. (The Journal doesn’t mention that it took Nixon two unsuccessful nominations — Haynsworth and Carswell — before getting Blackmun over the hump.)
The other Journal example is the oft-cited case of Justice Anthony Kennedy. A Democratically-controlled Senate approved him unanimously in 1988. Apparently believing that distinctions without a difference matter, WSJ reporter Brent Kendall notes that prior to Kennedy’s confirmation, the Senate rejected President Reagan’s first choice, Judge Robert Bork, and that his second choice, Judge Douglas Ginsburg, withdrew.
At the end of his article, Kendall identifies Jess Bravin — Wall Street Journal Supreme Court reporter with a bachelor’s degree from Harvard and a J.D. from University of California-Berkeley — as having “contributed to this article.”
Another Opinion
At best, The Wall Street Journal article is incomplete. Ironically, The New York Times op-ed includes more facts than the Journal’s news item. Professor Timothy S. Huebner notes: “On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.”
Professor Huebner continues, “In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement.”
What’s the Difference?
The distinction between news and opinion matters. Editors have a responsibility to make that difference clear, especially in our age of political polarization. Due to the power of confirmation bias, consumers of media tend to limit themselves to views they embrace. It keeps people comfortable in belligerent adherence to an understanding that may, in fact, be incomplete or even wrong.
In October 2014, PEW Research reported, “Those with consistently conservative political values are oriented around a single outlet — Fox News — to a much greater degree than those in any other ideological group: Nearly half (47%) of those who are consistently conservative name Fox News as their main source for government and political news.” Both Fox News and The Wall Street Journal are parts of the Rupert Murdoch family’s media empire.
Liberals tend to be, well, more liberal in their choices of news sources. According to the PEW study, “On the left of the political spectrum, no single outlet predominates. Among consistent liberals, CNN (15%), NPR (13%), MSNBC (12%) and the New York Times (10%) all rank near the top of the list….”
The predispositions of their constituencies create a special obligation for the media. There’s money in fomenting divisiveness. Blurring the line between “news” and “opinion” might advance a political agenda or sell advertising space, but it’s making the country’s problems worse.
In my opinion.
The Belly of the Beast 
I am not sure that it would have made much difference if the Journal had put its article on the opinion page. I’m more interested in the question “precedent for what?” There is certainly precedent for rejecting the president’s choice in an election year. There isn’t a precedent, and the Journal does not cite one, for postponing action until after the election in order “to give the people a voice” (translation: to give a president of a different party the chance to fill the vacancy rather than allowing the current president to do it). If Obama nominated someone and the Senate said no (for whatever reason, including a hope to do better if the next president made the nomination), no one would bat an eye.
Of course, the fact is that almost no one who reads the Wall Street Journal to the exclusion of other sources would give a fig about precedent. The Senate is not about to confirm a nominee that would change the balance on the court any more than the President is about to make a nomination that doesn’t. Not since the New Deal has the court been politicized the way it is now. What is the chance that any successor to Scalia, whoever nominates him or her, will enjoy the vote of confidence from the Senate that he did?
I thank you for clearing up some of the nonsense out in cyberspace. With the body barely cold and McConnell yammering about how the American people deserve a voice, you wonder if anyone actually passed a constitution test in their middle- or high-school years before running for Senate!
I agree with the fact that it’s blurring the line between news and opinion and making the country’s problems worse!