“The Daily Show’s” John Stewart appeared on Fox News Sunday. In that interview (you can watch the whole thing after the jump), Stewart charged that Fox News was a biased, agenda-driven outlet in a way that the rest of the mainstream media—CBS, NBC, ABC, CNN, The Washington Post, The New York Times—are not.
Stewart apparently didn’t read that morning’s Times. If he had, he might have read this article about Supreme Court Justice Clarence Thomas. I encourage you to read that article and then ask yourself the key question: “So what?”
The article seems designed to call Thomas’ ethics into question. Frankly, if this the best the Times can do, then I think it’s probably safe to say that Thomas is the most ethical man in Washington. There’s no there there.
If you’re interested in more of the legal ethics nitty-gritty, then I commend to you this piece by Ed Whelan of the Ethics and Public Policy Center over at National Review Online.
So what is this all about? Contra Stewart, it’s just the latest, most obvious, most ham-handed example of agenda-driven journalism. (Perhaps the most egregious example in the past decade was the Times vendetta against Augusta National’s men’s-only members policy.)
If you’ll recall the opening salvo of the Rep. Anthony Weiner fiasco when the former congressman was blaming a hacker for the lewd photo to the assembled throng of reporters outside his Capitol Hill office, Weiner tried to turn the discussion to Justice Thomas’ “ethics problems.”
What ethics problems? Thomas’ wife, Ginny, is a conservative activist and like every conservative activist nowadays opposes Obamacare. According to current liberal/utilitarian legal standards, this means that Thomas should recuse himself. Some might find it surprising that liberal feminists would think that a woman should have to sacrifice her own career because she married a powerful man, but political convenience trumps principles—always.
The Supreme Court will undoubtedly decide the law’s constitutionality before the 2012 election and should things pan out the way liberals fear it will, there may very well be a 5-4 decision limiting the scope of the federal government’s authority under the commerce clause.
Those numbers are the key, because it appears there really should only be 8 justices deciding the Obamacare case, not 9. Justice Elena Kagan, who served as Obama’s solicitor general before her appointment to the Supreme Court, appears to have been involved in consultations on how best to defend the law when it apparently got to the Supreme Court. If she is principled, she’ll recuse herself. (I would not hold my breath.) Without her vote, there is little chance that Obamacare withstands the Court’s scrutiny. Liberals’ best shot would be a 4-4 decision with squish Justice Anthony Kennedy on their side. A tie in the Supreme Court usually means that the appellate court ruling stands, but I am not a lawyer and don’t really know how that would practically work if you had differing decisions on the law’s constitutionality among the different circuit courts.
As Glenn Reynolds noted, this is all about creating a narrative that Obamacare was unjustly overturned by conservative judicial activists. If Justice Thomas has to be slimed to accomplish this, then that’s a price they’re
willing glad to pay.
And here’s the key that Stewart has missed: Try to figure out where the liberal activist groups end and where the New York Times begins in this story. If you can’t discern the dividing line, then that’s the media’s agenda-driven liberalism.