SCALIA’S VACANCY — NEWS v. OPINION

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.

JON STEWART SHOULD HANDLE THIS ONE

Everyone in the media knows about the Friday afternoon “news dump.” It’s how the government, industry, and celebrities distribute stories that they hope will receive little public attention. These dumps happen on Friday afternoons because the items wind up in Saturday morning newspapers (and on websites) that draw far fewer readers than weekdays or Sundays.

The problem is that when a dump retracts a story that made earlier headlines, the injustices wrought by the original and incorrect report can persist. The Justice Department is the latest victim of that phenomenon. But the episode symbolizes a deeper problem: the power of talking heads, even when they don’t know what they’re talking about.

Perhaps you recall the late September headlines about the $16 muffins that showed up in an internal audit of Justice Department expenses associated with a judicial conference. The story was everywhere — network newscasts and front pages of newspapers. The NY Post was typical: “Feds $16 Muffin Hard to Swallow.” John Stossel used the muffins to launch one of his “government is too big” rants. FOX News brought out its stable of commentators to blast the feds. ABC, NBC, CBS, and CNN highlighted their broadcasts with the revelation. Congressional Democrats and Republicans united in a rare act of bipartisan outrage.

Except it wasn’t true.

Within a day of the original story, Hilton Hotels disputed the inspector general’s conclusion, but most of the media ignored it. In fact, even after facts contradicting what had been dubbed “Muffin-gate” began to emerge, Bill O’Reilly continued to claim credit for “breaking the story” and to exploit it as an example of government waste. He was in rare form during his September 28 appearance on Jon Stewart’s The Daily Show.

Which takes us to last Friday afternoon’s news dump. In the October 29, 2011 Saturday edition of the Times, an article appeared on page A11:

“Report of Justice Dept.’s $16 Muffin Greatly Exaggerated.”

It noted that the office of the Justice Department inspector general “retracted its much publicized claim that the agency had spent $16 per breakfast muffin at a conference. And it expressed regret for the ‘significant negative publicity’ for the department and the hotel that hosted the meeting….”

It turns out — as Hilton had first argued on September 22 — that the continental breakfast also included pastries, fruit, coffee, juice, taxes, a gratuity for the servers, and — oh yes — free use “of a ballroom and a dozen meeting rooms during the five-day conference.” Not a bad deal for a decent Washington, DC hotel.

This leads me to three points:

First, everyone should read Saturday newspapers more carefully.

Second, don’t rely on anyone to give you all of the facts, especially the talking heads on TV.

Third, Jon – the ball is in your court.