"As Kagan confirmation hearings begin, Republicans struggle for line of attack." That's the headline of today's Washington Post front-page report by Anne Kornblut and Paul Kane on the Elena Kagan hearings. Isn't it strange how a story by objective Washington Post reporters mirrors the opinion of the Democratic president?
The analysis that the news cycle has crowded out stories on Kagan is fair enough, but the reporters go out of their way to dismiss Republican criticism of Kagan. If you doubt that this story, which neatly frames hapless Republicans versus a near-perfect nominee, is biased, consider this: Kagan's discrimination against military recruiters at Harvard is never once explicitly mentioned. Kornblut and Kane merely allude to the discrimination: "Republicans have tried to make an issue of her years as law dean at Harvard." You see, whatever it is that Kagan did at Harvard is not really an issue--Republicans are simply trying to "make an issue" out of nothing.
Never mind that liberal writer Peter Beinart called Kagan's discrimination against the military her "Achilles heel" and wrote: "Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement." And never mind that Jeff Sessions, ranking Republican on the judiciary committee, laid out the case against Kagan last week, arguing that it was hypocritical of Kagan to discriminate against the military while keeping quiet about the Saudi gifts Harvard was receiving. Sessions said in floor remarks:
information has come to light suggesting Ms. Kagan may have been even less morally principled in her approach than previously thought. Around the same time Ms. Kagan was campaigning to exclude military recruiters—citing what she saw as the evils of Don’t Ask Don’t Tell—Harvard University accepted $20 million from a member of the Saudi Royal family to establish a center for Islamic Studies in his honor. A recent Obama State Department report concerning Saudi Arabia and Islamic Shari’a law noted that: “Under Shari’a as interpreted in [Saudi Arabia] sexual activity between two persons of the same gender is punishable by death or flogging.” Ms. Kagan was perfectly willing to obstruct the U.S. military—which has liberated countless Muslims from the hate and tyranny of Saddam Hussein and the Taliban. But it seems she sat on the sidelines as Harvard created an Islamic Studies Center funded by—and dedicated to—foreign leaders presiding over a legal system that violates what would appear to be her position. She fought the ability of our own soldiers to access campus resources, but not those who spread the oppressive tenets of Islamic Shari’a law.
You can make of that argument what you will. Maybe it isn't a "compelling line of attack" on Kagan for Washington Post reporters. It presumably isn't going to sink her nomination. But should reporters decide for their readers that there's nothing to see here? That the argument that Kagan put her personal political beliefs (gay rights) above the law (the Solomon amendment) is invalid and unworthy of consideration?
Instead of laying out the facts and letting readers decide, Kornblut and Kane go on to dismiss more recent conservative criticism of Kagan:
in recent days, conservatives have seized on a new, albeit arcane, objection: Kagan's praise for a former president of the Israeli Supreme Court known for his activist approach to the law. "If people understood that an American Supreme Court nominee was going to follow the example of Barak, there would be grave misgivings and probably a refusal to confirm," Bork said last week in a conference call with reporters that was billed as a potential turning point in the nomination process. Never mind that most Americans have never heard of Aharon Barak, the Israeli jurist to whom Bork was referring (and whose effectiveness as a political weapon is diminished further because his name resembles the president's). Or that Bork was rejected for the court in 1987 and has served as the GOP's go-to judicial scold ever since.
Again, Kornblut and Kane don't present any arguments on why Kagan's admiration of Barak is or is not troubling. They simply dismiss the argument out of hand because few Americans have heard of Barak. For some reason, the Post didn't dismiss Democratic criticism of Samuel Alito's theory of "the unitary executive" in 2006, even though I can't imagine more people had heard of it than have heard of Aharon Barak. From the Post's 2006 report prior to the Alito hearings:
Many liberal groups say Alito's rulings and writings have shown too much deference to the executive branches of state and federal governments. In a 2000 speech, Alito embraced the theory of "the unitary executive," which imbues the presidency with expansive powers. In 1986, as deputy assistant attorney general in the Office of Legal Counsel, he advocated having the president issue statements about the meaning of statutes when he signs them into law, a move that some consider a violation of the separation of powers.
Would it be that difficult to similarly describe in one paragraph why Kagan's calling Barak her "judicial hero" is troubling to conservatives?
The Post fired blogger Dave Weigel last week after his leaked emails on the listserv JournoList revealed that he had said some nasty things about conservatives and had offered advice to liberals on how to advance their agenda in the media. Though Weigel was capable of writing fair and accurate reports, his personal bias was at times reflected in what he wrote and what he chose to write about. But with Weigel, who used to work for a left-wing website and was open about his anti-conservative bias, at least you knew what you were getting up front. In my view, that's preferable to his former colleagues' pretense of objectivity.