Monday, April 08, 2019

Partisan Divisions in the Supreme Court: It's Likely to Get Worse (and There's No Reason to Think that it Will Necessarily Ever Get Better)

Sandy Levinson

For the symposium on Neal Devins and Lawrence Baum's new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).

It is tempting to incorporate by reference the other excellent reviews of The Company They Keep:  How Partisan Divisions Came to the Supreme Court,, a truly interesting and important book by Neal Devins and Lawrence Baum.  I particularly like Jack’s placing the central arguments of the book within the larger political context of the Reagan Administration and the particular role played by the unsung “hero” Edwin Meese.  Meese’s centrality to the story can be best understood if one compares the relatively insignificant role played by the American Constitution Society, ostensibly the liberal alternative to the Federalist Society, in national judicial politics during the Obama Administration.  Whatever Eric Holder’s other strengths may have been, he was no Ed Meese in terms of making it a central goal of those charged with judicial selection within the Department of Justice to “clear it with Caroline (Fredrickson)” in a way that Meese’s prescient focus on the Federalist Society has led, ultimately, to Trump’s basically delegating to Leonard Leo, backed by the Federalist Society and Heritage Foundation, the task of selecting federal judges.  Indeed, Meese, drawing on his speechwriter Gary McDowell, a trained political theorist, made several speeches, including one at Tulane, that directly generated intense debate among legal academics about basic constitutional theory, including what was then a somewhat nascent “originalism.”  One might compare this, ruefully, with the fact that not only Holder, but also his boss, the former President of the Harvard Law Review and a former member of the University of Chicago Law School faculty, never once offered an interesting observation about the United States Constitution and the vision presumably underlying it nor indicated any deep interest in molding the federal judiciary through judicial appointments.  

            But Devins and Baum are not primarily concerned with the process of judicial selection, though much in their book is obviously relevant to that.  Rather, they are interested in the phenomenon of polarization within the Supreme Court itself.  Perhaps they should have added a further clause to their subtitle, consisting of “and Why the Divisions Will Almost Certain Continue and Get Worse.”  The reason is deceptively simple:  Judges are not simply individual monads with their own ideologies or ostensible approaches to legal interpretation.  Instead, one must realize that judges are human (or, as Nietzsche might have put it, “all too human”) and, like most of us, seek approval and even affection.  There may, of course, be some exceptions, but it would be foolish indeed to believe that judges are indifferent to what those people or organization whom they most respect think of them.  As social creatures, they are subject to the same pushes and pulls of social psychology that explain most people.  It is not enough for the Federalist Society (nor would it be for the ACS) to assure that compatible judges are nominated.  Instead, they must be encouraged to remain vital parts of the political movement that accounts for their nomination in the first place. 

            Perhaps it is helpful in this context to compare judges to professors (which some of them have been).  To be sure, some professors are truly indifferent to what their students think of them; one suspects, however, that those same professors are extremely sensitive to their place within the wider academy, especially among those subgroups within a given discipline with which they identify.  Disdain by students is more than made up for by esteem from one’s professional peers, whether this is registered by publication in suitably prestigious journals (which, increasingly, are specialized), invitation to symposia, or election to leadership positions in one’s professional organization.  Or they may consciously adopt the role of “public intellectuals,” where the key datum is the receptivity of reporters or the editors of op-ed pages to solicit their views about pressing matters of the day.  Some professors might be glad to trade lessened professional esteem for greater adoration by students or public notice.  But few indeed are the lone-wolves who simply don’t care what anybody thinks of them because they are relentless Thoreauvians who march only to their own drum.  (And, frankly, it is highly unlikely that such idiosyncratic marchers would gain the requisite notice and support required to trigger appointment to the federal judiciary.)  So it is with judges, according to Devins and Baum.  

            What must be understood, they argue (and demonstrate) is that the real brilliance of the Federalist Society is to have created an entire community devoted to nurturing and supporting its members.  It takes a village not only to raise a child, but also to keep childrend within the fold as they leave the family nest and enter the wider world.  How, indeed, will you keep them down on the farm after they’ve seen (and experienced) Paree?  During law school, those who view themselves as beleaguered conservatives resisting the likely liberal hegemony can join together to share their objections to their liberal professors and, along the way, learn arguments that can be brought to bear against their views, whether, in the “old days” of Robert Bork the message of “judicial restraint,” or the new arguments for “judicial engagement” that rely on tendentious applications of purported “originalism.”  One becomes integrated into the world (or village) of the Federalist Society as a self-conscious alternative community to that enjoyed by liberals who were content to take advantage of the more welcoming gestalt of the American law school (and, for that matter, an ever-increasing number of American lawyers, who appear to be moving steadily left).  The Federalist Society is a “full-service” network, in which the extraordinarily important (and often impressive) law school chapters play the role of recruiting a genuinely lifetime membership, whether as a practicing lawyer or eventual judge.

            What this boils down to is that judicial nominees, having been socialized into the specifically conservative community, have not only internalized the values (and modes of argument) of that community, but also sensitized to the desirability for continuing approval and sense of welcome.  Concomitantly, this means that such nominees are increasingly indifferent, if not outright hostile, to gaining the esteem of those identified with the discredited left.  Just as FDR claimed to luxuriate in the hatred directed at him by the “economic royalists” who opposed the New Deal, one suspects that many contemporary judges (and Justices) who have risen through the Federalist ranks are more than happy to accept critiques directed at them by descendants of FDR and the New Deal “settlement” that was emphasized during the legal education of older readers of this posting.  Indeed, it may be damaging to one’s current career prospects if one is too often admired by non-conservatives.  One of the great scandals of “the list” compiled by Leo and his associates from which Trump has apparently drawn his nominees for the Supreme Court is that it did not include the widely admired (by liberals) Sixth Circuit Judge Jeffrey Sutton or former Tenth Circuit Judge (and professor at Stanford) Michael McConnell.  No one should confuse them with adherents of the political or legal left. .  Given my own views, I would not nominate either to the Supreme Court; nor, I suspect, would they be inclined to nominate someone like me.  That being said, I would support them if nominated by a Republican president and would trust them to behave honorably as justices, whether or not I would always agree with their opinions, which I surely would not.  In the contemporary world, though, both are viewed as too likely to stray from what has become conservative orthodoxy, as revealed, for example, in Sutton’s brilliant opinion for the Circuit upholding Obamacare.  (Similarly, of course, one wonders if John Roberts, whom I view as a faithful servant of the capitalist empire, would be truly welcomed at contemporary Federalist gatherings, given his ostensible betrayals in the two Obamacare cases.  Certainly, Donald Trump exhibits no respect for Roberts, whatever his willingness to rubber-stamp executive power in the Hawaii case.) 

            As Devins and Baum well argue, too many political scientist in essence view judges as  highly individualistic; all are attempting to optimize their political preferences (simple “politicians in robes”) or, perhaps, thinking strategically how to influence other political actors, including their own colleagues.  But methodological individualism reigns.  The opposite jurisprudential view, identified with Ronald Dworkin, is equally individualistic, as “Hercules” thinks exclusively of arriving at the legal “right answer,” presumably indifferent to the social consequences or degree of approval by other participants in the legal order.  Both legal realism and Dworkinian legalism must be supplemented by the careful attention to a judge’s social surround as developed by Devins and Baum.It is indeed foolish to ask what a judge had for breakfast in order to understand her vote; it is definitely not foolish, however, to ask what groups she looks to for sustenance to get through the stresses of our fractious society.  

            Richard Hasen and Linda Greenhouse both emphasize Antonin Scalia’s contempt for the Washington Post and New York Times.  It is almost literally unimaginable that an earlier justice, at least after 1945, would have been so completely dismissive of these two leading newspapers.  But, of course, that was an era when Richard Rovere and other more scholarly analysts described “the establishment”—or, in C. Wright Mill’s more sensationalist term, “the power elite”—that constituted America’s leadership class and, presumably, provided the basis for what would count as the “conventional wisdom” that one was expected to endorse (and implement when was asked to fill official leadership positions).  Also not coincidentally, that was the era when leading American historians described the country as under the sway of a “consensus” that set out the clear parameters of what was thinkable and what was, in effect, “foreign.”  Or one can simply think of the fact that there were only three television networks that dominated the airwaves, which allowed Walter Cronkhite in effect to speak for much of the country when he famously became disillusioned with the Vietnam War. (I was reminded at a recent lunch that LBJ kept three television sets tuned to the three networks in order to keep tabs on public opinion.  That made sense, then.  Today we know that Donald Trump is also an obsessive television watcher, but there can be no doubt whatsoever that he has no interest in watching the full range of what is available even if that were thought to be a good use of a president's time.)

            At a far more mundane level, one might also suggest that it was an era when members of the legal academy and the elite judiciary had some kind of symbiotic connection, so that judges cared what those “reviewing” the Supreme Court had to say.  This is the basis of the alleged "Greenhouse effect," referring to the Times' longtime analyst of the Supreme Court, though one might also think of the importance that used to be assigned to November issues of the Harvard Law Review.  The “Forewords” were quickly read, and then discussed, often providing the basis for further discussion of the Court at least in our classrooms.  Similarly, Herbert Wechsler, delivering the Holmes Lecture at Harvard in 1957 and announcing his devotion to “neutral principles,” shaped the debate over Brown v. Board of Education—and much else—for at least the next decade.  Finally, consider the lead paragraph of the column by New York Times writer Anthony Lewis on October 10, 1969, where he described Alexander Bickel’s own Holmes Lectures at Harvard, highly critical of the Warren Court, as “one of those intellectual events whose reverberations gradually disturb a widening circle…., an event in the law.” Whatever one thinks of Lewis’s assessment of those lectures, later published as The Supreme Court and the Idea of Progress, it is almost ridiculous to believe that any lecture anywhere or essay in the Harvard Law Review would today reverberate throughout and in some significant sense shape the entire academy, save, perhaps, to the extent that it would be viewed as just another sortie in the ongoing culture war over constitutional meaning. Just as there are no longer any television series that are in fact watched by “everyone” and thus constitute the basis for a common culture, there is no longer a common culture within the world of lawyers, whether they be fledgling law students or members of our highest courts. It may be telling that Wechsler and Bickel, like Philip Kurland in his truly vitrioic "Foreword" of 1963, although vigorous critics of the Warren Court, were not to be confused with "conservatives."  None would have dreamed of attacking the New Deal Settlement that gave Congress close to plenary power over the economy.  Today, of course, that Settlement has become profoundly unsettled, and most persons on Leonard Leo's list would gladly engage in further disruptions.

            Richard Posner in his 1990 volume The Problems of Jurisprudence basically ridiculed the notions that there was an autonomous domain of “legal reasoning” that could allow a basically homogeneous legal elite to grade the work of the Court by reference to the notion of “legal craft.”  Not surprisingly, Wechsler was a particular target, though this also certainly included Ronald Dworkin’s insistence that there were indeed “right answers” to legal conundra.  Instead, drawing on Holmes, Posner argued that law, especially at the level of the Supreme Court, inevitably required political (or ideological) decisionmaking about the best way of shaping the American future.  And as the judiciary became more politically and intellectually diverse, as was certainly occurring even by the time he wrote—and signified by his own presence, courtesy of Ronald Reagan, on the Seventh Circuit—one would expect to see ever more dissensus—and perhaps accompanying anger on the part of opponents who refused to credit the intellectual good faith of those who disagreed with them.  It is an unfortunate truth that Antonin Scalia’s most important legacy might be the introduction of “trash talk” to the Supreme Court, where he described those who disagreed with him, as in Obergefell¸ as not behaving like judges at all rather than merely having what he considered mistaken views of the law.  The ostensibly more nuanced Chief Justice Roberts was no better when he harrumphed in his own dissent in that case that the ruling by his colleagues had “nothing to do with the Constitution” and instead presumably represented only the raw power of five unconstrained pseudo-judges to work their will.  If Scalia or Roberts were truly serious, they would have demanded the impeachment of their colleagues for betraying their oaths of office, but, of course, they were instead only throwing red meat to their own bases, which certainly applauded their intemperance and added to the general national polarization. Indeed, Scalia especially rewrote the job description of Supreme Court judging by devoting his energies far more to building a vigorous movement of right-wing lawyers than to conversing with his colleagues and attempting to achieve some kind of compromise-based consensus.  It may be lovely that he and Ruth Ginsburg like to attend the opera together or share New Year's Eve dinners, but this did not translate into genuine respect for the possibility that she might be truly insightful as to what respect for the Constitution entails.

            So why would anyone believe that the phenomenon of polarization so well delineated by Devins and Baum will be rectified—assuming one thinks it’s a genuine problem with regard, say, to maintaining a belief in “the rule of law”—in the lifetimes of anyone actually reading this review? One of the realities of interest groups—whether or not they are identical with Jack’s notion of “social movements”—is that they often depend on the “Othering” of their opposition.  Just think of appeals for donations we get from whatever politically-related groups we might in fact support.  Although the Federalist Society has always treated me with courtesy and has asked me to be the “token liberal” on several of their panels over the years, I have no doubt that my general views are viewed with disdain; I assume the same views of the opposition are evidenced when members of the American Constitution Society get together in private, even if they, too, try to include conservatives within their public fora.  More to the point, we are all aware of the various advertisements that now appear on the occasion of any nomination to the Supreme Court.  Subtlety and nuance are not their central characteristics.

            One might conclude that Devins and Baum have written a profoundly depressing book.  We might try to figure out ways to limit the consequences of the socialization processes they so well describe, though, as with Madison in Federalist 10, one might well regard any potential cures as worse than the disease.  Or one might instead simply say that the process has always been present, but was largely unnoticed because a quite homogeneous elite was able to exercise undue control over who actually got appointed to our apex Court and how they would be evaluated thereafter.  A racist brute like James McReynolds was almost universally regarded as an aberration—recall that he refused to be photographed seated next to the Jewish Louis Brandeis—rather than as the poster-judge of a respected political party or social movement.  But one must recall that even George Washington was unable to procure Senate confirmation for all of his appointees, and that itself established a precedent for many future nomination battles.  One could, of course, analyze them in terms of the social networks who rallied both for and against particular nominees and the sensitivity of the judges to the support (or opposition) they received.  Still, there was in earlier years no equivalent to the Federalist or American Constitution societies, and it is now impossible, thanks to Devins and Baum, to ignore the institutional context of our present polarization.    


"Richard Hasen and Linda Greenhouse both emphasize Antonin Scalia’s contempt for the Washington Post and New York Times. It is almost literally unimaginable that an earlier justice, at least after 1945, would have been so completely dismissive of these two leading newspapers."

Speaking as a long time reader of both, they were, (Especially the Post!) quite different publications even a few years ago. Decades ago they might as well have been completely unrelated to the current publications.

It's still worth reading them occasionally to get an idea of what the other side thinks, but there isn't really much in today's Washington Post for a conservative to engage with anymore. It's a surreal experience reading the Post now, like getting a newspaper delivered from some alternate universe where fantasies are reality.

And you can only take so much exposure to unbridled contempt.

I think what we're looking at now is the failure of the preference falsification that prevailed during the Cronkite era, and the former regime is attempting to reimpose it. But without the former media dominance, the result is only bifurcation, not control.

And, as though to compensate for the lack of dominance, the party line that is being pushed out just becomes more extreme.

Sandy: It is not enough for the Federalist Society (nor would it be for the ACS) to assure that compatible judges are nominated. Instead, they must be encouraged to remain vital parts of the political movement that accounts for their nomination in the first place.

Therein lies the rub

The legal caste is overwhelmingly progressive and the social pressure within that caste to conform is similarly overwhelming. With this support system, any judge with a progressive world view will become a reliable rubber stamp for progressive policy regardless of the law.

Our merry band of Federalists can provide refuge for those who still believe in the rule of law by the time they reach law school and an avenue to advance up the judiciary in alliance with appointing elected officials of similar outlook. However, once the Judge Rule of Law becomes Justice Rule of law with a lifetime tenure, the need for the Federalist support system and their commitment to the rule of law often wane in the face of establishing a legacy or maintaining their standing within the broader legal community. See, most infamously, Kennedy and now perhaps Roberts.

I suspect legal academia has more influence over the Justices like Kennedy and Roberts than you believe and they would admit.

I vividly recall the full court press on Roberts to maintain the reputation of his Court by defending Obamacare and Roberts's very unusual 180 degree response of leaving the rule of law majority to overturn and instead offering an self contradictory opinion claiming the individual mandate was merely a fine for some purposes and a tax for others to preserve the outlaw program.

Was this simply an error rather than a collapse to pressure from our legal elite?

If the Texas case finding Congress made Obamacare unconstitutional when it removed the Robert tax fig leaf makes it to the Supreme Court, we may find out.

Do you recall when Kennedy offered a paean to the state power to define marriage in order to overturn the federal Defense of Marriage Act, then completely rejected that power ito create a fictional right to SSM?

If Roberts abandons the reasoning of his first Obamacare decision to again protect the outlaw program, then his transition from a Federalist to a Kennedy will be complete.

Feel the power of the dark side...

I often am wary about "back in the golden age" talk though there is a stronger ideological division in the Supreme Court these days.

Did not read the book, but it's often interesting to me (toss in that qualifier) to look historically. The Supreme Court started as a "Federalist"* institution as a whole, George Washington concerned about putting in people who supported the ratification. You'd think that maybe Jefferson and Madison would change things there but John Marshall continued to dominate. The Marshall Court did start to divide in the 1820s. Nonetheless, a Jacksonian division than dominated.

History for various reasons prevented a longstanding ideological division for various reasons but one did pop up to some extent since the Roosevelt-Truman justices broke into two basic factions. Still, there was a basic united view of various things though it was not really as cleanly reflected in the population as a whole probably. To that extent, maybe the eventual division in the Supreme Court was an ultimate result of a "popularization" of some sort coming to the courts as well.

A useful enterprise here was to have a few justices who could truly be seen as median justices. These justices these days, by both sides, are at times deemed to be wusses of some sort. Take someone like Byron White. Liberals can point to various things he did that bother them (see his rather crude dissent in Roe v. Wade) but he also was on their side on gender equality and other issues. Plus, you have a few presidents who did not select ideological pure justices. Now, we need not give them too much credit. Some like Brennan was not really their intent.

Also, it's a reflection of stronger political divisions. Stevens and Souter are now deemed strong liberals. And, not to violate "both sides do it" requirements, one party did push the envelope more in recent years. Merrick Garland, for example, is someone who could have toned down things. Some liberals didn't like that pick and Republicans for years supported him. (If you want to take them at face value or not.) Half of the Democrats supported Roberts. Kagan, who reached out to conservatives for years? Not so much on the Republican side. And, though the judiciary clearly matters to both parties, Republicans have put more energy into fighting for an ideological pure judiciary.

The value of median justices continue. We do need to push for mixture here. Breyer and Scalia, e.g., a few times showed up together. Different ideological groups should reach out, not just as tokens, for speakers, especially on things that can bring people together (even now, the Supreme Court is fairly united on certain subjects). And, the two sides still don't seem similarly situated. Breyer and Kagan might be strong liberals, but both for years also have tried to bridge the divide. Roberts will up to a point as Chief Justice. The other justices, not so much though back in the day RBG actually was more likely to (she was a median judge on the court of the appeals).

OTOH, I'm not sure if the problem is as new as some might suggest. For instance, a book on the Warren Court noted the justices basically had a certain mindset. Another was basically a type of foreign country.


* There was some annoyance by those against ratification in particular about that label, some deeming the party more "nationalist" than "federalist." One wag at the time suggested the parties be split into "ratification" and "anti-ratification" or "rat" and "anti-rat."

Good essay. Brett's comment reinforces your point quite well.

Setting aside the pejorative terms Sandy uses at some points, I agree, a good essay.

Sandy: "Richard Hasen and Linda Greenhouse both emphasize Antonin Scalia’s contempt for the Washington Post and New York Times. It is almost literally unimaginable that an earlier justice, at least after 1945, would have been so completely dismissive of these two leading newspapers."

If you want the establishment left point of view of America's leading blue megalopolis and the Capitol, then the NYT and WP are your go to papers. Beyond that, the papers are useless as complete and objective news sources.

The NYT/WP provides little news concerning "flyover country" or the issues important to this area's inhabitants.

The NYT/WP will faithfully report the DNC meme of the day However, the papers will either spin or spike news which is harmful to Democrats.

In sharp contrast, most especially since Trump arrived, the NYT/WP has gone to war with the GOP. Their favorite tactic is citing unnamed Dem bureaucrats inhabiting the deep state making slanders against Trump and/or the GOP without attempting to verify the claims with actual evidence.

"Fact checking" is generally reserved for and used as a sword against Republicans. These checks are generally little more than labeling anyone who disagrees with progressive opinion to be a liar, most especially Trump.

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Brett and Bart on the 'MSM', as with so many conservatives today, must be seen for what it is: an inverted projection of their own paranoia, biases, and tendencies towards hyperbole and absolutes. *They* increasingly must have their 'news' supplied by outlets that are ever more extreme in their bias, paranoia and hyperbole and absolutes, and so any sources that don't fit into that mold seem like 'an alternate reality' to them, for sure (when you choose to live in the mirror dimension this one looks pretty crazy to you). There is, of course, no left win equivalent to the conservative media, a media that was created and is run with the conscious and rather blatant objective of coordinating with the conservative elements in the GOP to get 'their' message across, conscious 'shadow institutions' created, consciously working together on a common blue print with pushes to use standardized lingo and wording (notice Bart's always on-track parroting of whatever lingo the conservative media apparatus is using at the time) (see, the Powell memo, the work of conservative 'think tanks' to create shadow academic journals and 'research,' Fox news, the creation of a lifelong GOP operative with the conscious objective and current management style of not just having a right bias but outright coordination with the GOP and it's more conservative elements). To some degree conservative media consumers are actually conscious, and proud, of being in on their gaslighting (remember how Limbaugh's fans used to call themselves 'dittoheads').

When you combine these astro-turf efforts with another increasing tendency of conservatism that I've noted here before has been rising since at least Nixon, that is the growing embrace of anti-intellectualism as a *virtue,* you're getting something pretty terrifying: a group of people proudly, happily ignorant and unwilling and not having to ever engage in outlets that tell them that what they believe isn't just wrong, but paranoid nonsense.


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Take almost any issue and you can see this on it's face. Climate change for example. The 'MSM' or 'NYT' print a story on climate change like this: 'Respected scientific group releases study that considerable, damaging sea rise can be expected in decades due to anthropomorphic climate change.' Fox or Limbaugh will counter with a story like this: 'Handful of scientists, often in non-related field, say general consensus on climate change is wrong. Is a conspiracy by a worldwide cabal of most scientists, who are perhaps all God-less socialists who hate America and capitalism, afoot?' The Fox/Limbaugh consumer sees the former story and thinks 'huh, obviously they're part of the conspiracy!' But to anyone not 'drinking the Kool-aid' on the far right (which is essentially the right these days), what is a journalist to do? To report any story a neutral aiming fact finder will, of course, put much more coverage and credit to what a large group of people with lot's of creditable training and experience in a field say than they will a much smaller group of people with much less credentials making a much more paranoid, hyperbolic sounding group's counter-claim is. But even that reasoning cannot pierce the bubble the right ensconces itself in these days, because they've got the argument ad elitism they like (well, that's just a bunch of elites, and we know all elite institutions are part of the left wing establishment!).

This example can be repeated over and over, from issue to issue. These kind of people are not going to be reasoned out of anything.

What CAN be done though is to make sure to record their foolish statements, predictions and stances, and then relentlessly mock and point out how wrong they were. Bart is a good example of this in a small way with his laughably and demonstrably wrong 'these poll numbers are great news for McCain or I guarantee a Romney victory' statements here. On a larger scale, look at W Bush, once beloved by the Right he and many of his stances they once went to the barricades for are now disavowed as never having been conservative at all (this applies to Nixon too as a great example) because they've, with time, become so palpably wrong to people with any shred of non-crazy and intellectual integrity. Now, you're not going to shame the Palin's or Bart's, these people know no shame in being proven wrong regularly, they will not retreat but reload and keep making such silly pronouncements and statements. But what does happen is that the more casual 'fan' of the right starts to move away from what becomes mockable. And that's the margin of them losing...

Of course, on the other hand, if the Left starts embracing a mirror image of this model, as seems to be trending to me, then watch out, all bets are off for those of us who are trying to be objective and fair minded and not crazy...We'll just have two flavors of paranoid self-imposed ignorance to choose from.

Again, it's so easy and transparent now to see how someone like Bart's thinking is simply to invert his own biased projection onto his 'opponents' (in Bart's world there are just fellow partisans and enemies, he's happily said, like some conservative heroes of his, he doesn't do 'nuance').

"If you want the establishment left point of view of America's leading blue megalopolis and the Capitol"

Well, of course the newspapers originating out of two big 'blue' 'megalopolis' (note the classic propagandist wording, why say 'city' when you can try to score a point?) focus more on...the news and issues involving/concerning those two big cities. Duh. What's amazing is how much coverage and time they spend trying to do otherwise.

"The NYT/WP provides little news concerning "flyover country" or the issues important to this area's inhabitants."

This is, of course, easily, demonstrably wrong. For example, the recent flooding in the 'heartland' (another propagandist term Bart dittoes regularly) was covered very extensively.

"The NYT/WP will faithfully report the DNC meme of the day However, the papers will either spin or spike news which is harmful to Democrats."

Again, this is *total* inverted projection. There is nothing the NYT/WP does that *comes close* to the full throated and blatantly coordinated 'coverage' that, say, Fox gives to Trump and the GOP in general. Fox was started by a life long GOP communications operative with the stated goal to offer conservative friendly news. Fox figures go into the Trump administration and back to Fox with a regularity and ease that just doesn't exist for the 'MSM' media outlets. They clearly coordinate and parrot the *exact* stories and opinions the administration wants them to (as opposed to the general left-leaning of the 'MSM' which is just a trend in any 'knowledge' sector these days).

"In sharp contrast, most especially since Trump arrived, the NYT/WP has gone to war with the GOP."

Again, the coverage of the NYT and WP is critical and, in the latter, even close to hostile, to Trump often, but nothing like the unceasing level of hyperbolic, conservative conspiracy fodder Fox regularly offered against Obama and Clinton. Limbaugh used to open his show when Bill Clinton was President with sirens for 'America under seige' with a running count-down of when it would be over.

"Their favorite tactic is citing unnamed Dem bureaucrats inhabiting the deep state making slanders against Trump and/or the GOP without attempting to verify the claims with actual evidence."

Actually, what occurs much more often is that the 'MSM' outlets will give far too much life to lightly (at best) charges that are getting much air in conservative outlets and cite unnamed sources to undermine *Democratic* figures ('some Democrats are worried about clouds being cast over Clinton's campaign by allegations of...').

""Fact checking" is generally reserved for and used as a sword against Republicans."

A party that embraces anti-intellectualism and has as it's head someone who lies and makes false statements as much as Trump is going to lose out in fact checking. This is no more indicative of bias than the fact that teams that play against Zion Williamson tend to get called for fouling him a lot is indicative that the refs are 'pro-Duke.'


Mr. W:

Spare me. I know you don't believe half the crap you just shoveled.

For as long as we have had political parties and relatively free newspapers, we have had a partisan news. The only difference today is the inbalance bewteen the handful of GOP media like Fox News and the tidal wave of the Democrat media from everywhere else. Your argument that your favorite news sources are objective, but mine are radical maniacs is utter bull sh_t.

BTW, I consume both Dem and GOP news media because its the only way to get all the news and keep up with what my political opponents are up to. You clearly get your news from Colbert and MSNBC.

He's right, Bart. You're a bullshit spewing idiot, and Faux News is largely responsible for ignorant assholes like you.

There is no Democrat(sic) media as there is a conservative one, one that consciously, blatantly and in a coordinated way acts as a propaganda source. It's not even close. But of course as the fish swimming in the bowl assumes everyone else is swimming in one outside Bart assumes the outside world is as mockably paranoid and bias as he is.

Oh, come on, Mista Whiskas: You must have watched that media suicide watch election night 2016, just as I did. What did you call that, the weeping face of disinterested objectivity?

American media have always been partisan. Our newspapers originated as propaganda outlets for political parties, as you can see from the names of the older papers.

For a short, short while they put on a mask of objectivity, and under the cover of it purged most of the Republicans. Then the mask fell off, and you want us to pretend it didn't.


2016? When the 'Democrat media' gave by far the most coverage to the nothing burger story of the Clinton email scandal?


Are you really committed to pretending that a blatant but successful white wash is the same as a "nothing burger"? I suppose you think Lynch and Bill arranged to meet in an empty jet on the tarmac in order to discuss the grand kids, too?

You don't HAVE to be a hack here, she's done, stick a fork in her, you don't have to defend her anymore. Let it go, it's OK now to admit she's corrupt.

Brett thinks an investigation into his political enemies led by a lifelong operative of the other party who broke protocol to speak out of turn about a case which he knew was ultimately non-prosecutable sinking his political enemy's election is a whitewash *for* his political enemy. He demonstrates how far gone the right is, and how nothing but the most irresponsible biased 'reporting' would seem right and fair to him.

"which he knew was ultimately non-prosecutable"

There's a huge difference between, "won't be prosecuted because the DOJ is corrupt" and "wouldn't be prosecuted because there's no crime".

But I doubt you're ever going to admit that, and that's sad.


You see, we know the DOJ is corrupt because it didn't indict Hillary, who we know is guilty. Assuming the former must yield the latter, and in Brett's mind only a blind partisan reporter wouldn't assume the latter. This is how conspiracy theorists think, it's a closed loop which can't be broken, the loop just gets expanded as to who is 'in' on the conspiracy. So you can get a lifelong GOP head of a historically and sociologically conservative institution and from a historically conservative profession be named to investigate a Democratic figure, break protocol to issue declarations damaging to that figure's political prospects in a case concluded not even warranting indictment and for the conspiracy theorists it's just proof that the conspiracy's net is wider than first thought. Again, only the most blindly partisan and irresponsible reporting would satisfy Bretts of the world. Sadly, conspiracy theorist thinking is essentially a defining feature of the Right these days. Reporters, academics, etc., that won't indulge that kind of thinking, even if they politely entertain it (which they usually do but shouldn't) are therefore seen as the mirror image of what these conspiracy theorists themselves are. It's bizarro all the way.

Yes, we know she's guilty, because just information in the public domain at this point would be enough to convict somebody who didn't have political connections.

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Mr. W brings up a perfect example of the my observation above: "The NYT/WP will faithfully report the DNC meme of the day However, the papers will either spin or spike news which is harmful to Democrats."

Go google the sentence: "Justice Department told Comey they would not prosecute Clinton."

This refers to the testimony of Clinton whitewash and Trump witch hunt perp Lisa Page gave to Congress the Obama Justice Department told FBI early on that they were not going to charge Clinton with the gross negligence crime, which suggests "lifelong Republican" Comey lied when he took responsibility for the charging decision in order to give the politicized Justice Department cover

Sorry, Mr. W, but the Obama Justice Department refusing to prosecute their boss's chosen successor is not the same as a "non-prosecutable" case.

The first page of google hits nearly all refer to a NY Times story claiming Trump was considering ordering Justice to prosecute Clinton and Comey "according to two people familiar with the conversation," which itself is a good example of my observation above: "Their favorite tactic is citing unnamed Dem bureaucrats inhabiting the deep state making slanders against Trump and/or the GOP..." This story has nothing to do with what I asked.

The only source reporting the story for which I searched in plain English is, of course, Fox News.

I suspect you know nothing about the Page admissions to Congress because Colbert and MSNBC declined to tell you. A very 1984 existence.

FYI, the Clinton whitewash and Trump witch hunt perps have made a long series of disclosures to Congress which give us a very good idea of then parameters of these conspiracies (yes, we are discussing prima facie cases of conspiracy). The most comprehensive compilation of this testimony, complete with flow charts, I have found was at an internet news outfit called the Epoch Times in a VERY long story entitled: Spygate: The Inside Story Behind the Alleged Plot to Take Down Trump.

I guarantee Mr. W will refuse to read the evidence and instead will kill the messenger. Just watch.

Brett's statement reminds me of a neighbor who challenged another neighor's fence because he looked up where the property lines were and the fence was on his side . He made a big stink to our mutual neighbor, after all, it was cut and draw, all the info needed was in the public domain. After a tidy sum in court and attorney costs he met a humbling defeat: the fence had been there long enough to be protected by adverse possession....

In other words, just having public domain knowledge (a term from copyright law) doesn't help a non expert know much about much. But this is the right today, their anti-elitism insulates them from this common sense truth. The amazing thing is when journalists don't make the mistake with them they double down and accuse the journalists of bad faith!

As you can see with Bart as well, the conspiracy thinking common on the right just expands the bubble so that the conspiracy is deeper than one thinks. Sloppy reasoning from selective evidence via dubious, unprofessional sites driven by a foregone partisan conclusion. This is mainstream Right thinking right now!

So now Blankshot thinks it was DOJ that made the decision for Comey? And like any Republican, Comey decided to take the blame and not mention to anyone that he was just a puppet for Obama? Yeah, that totally makes sense.

Mr. W:

Did I call your response or what?

In any case, we are discussing the admissions of the Clinton whitewash and Trump witch hunt perps themselves, not the fantasies of the GOP or GOP media.

The first thought I had reading the testimony was a conspiracy to deny honest services in violation of USC 18 U.S.C. § 1346.

"After a tidy sum in court and attorney costs he met a humbling defeat: the fence had been there long enough to be protected by adverse possession...."

So, the implication is, nobody is allowed to reverse your white washes, they're indelible?

Mind, I think you're probably aware that adverse possession has to actually be adverse; The Obama DOJ refusing to prosecute Obama's former SOS was hardly that. It was more like the renter exception...

Regarding the title, it's hard to know really.

I would not be shocked if somehow in the next 5-15 years, let's say (who knows), there is a serious change in the status of the national parties. Or, something big happening in the Supreme Court nomination process that changes things somehow.

Maybe not. But, things do change over time.

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It's interesting, though predictable, to see our resident conservatives miss the point. Of course the point of my analogy wasn't about a point of property law or which property doctrine would be a better analogy, but about the point that a person could have or have access to all the 'public domain' information about a complex legal matter but, without knowledge and training, they will still not be able to draw sound conclusions. In fact, you need the knowledge and training to even know what information is actually necessary to draw them. Like so many conservatives today ensnared with anti-elitism (while supporting a billionaire heir) and the charm of simplistic, clean cut answers, I don't think Brett can imagine or accept this point...

And of course Bart can think he 'called my response' without realizing that I 'called' his in his initial post and subsequent response. Note that he thinks he called my response by saying I'd 'kill the messenger,' but in ignoring that my pointing out the dubious source he noted was only *one* of several other routine failings in his reasoning he actually *displayed* the several others (selective evidence, sloppy reasoning, et al).

This isn't really surprising. We've seen Bart and Brett's tendencies to over confidently opine on subjects they don't know about, toss out hyperbolic over generalizations and predictions that later are easily demonstrated to be wrong (often to comic effect), so many times. No, what interests me is not the predictable response, but the source. Is it, as I once thought, just example that minds are warped with extreme partisanship in general, or is there something unique about today's conservative high partisanship that does this? I actually think the answer these days is that the question was a false one, that increasingly today "conservative" just = "extreme partisan." That is, there is no middle to conservatism, the fringe is the mainstream. And this ties us back to the OP: polarization and an inability to reason with the other side are inevitable when one side's mainstream becomes the fringe. Paranoid conspiracy, with all the sloppy mistakes of the mind that come with it, closes itself off from reasoning. In other words, it only takes one to tango to produce the gulf between sides...

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Mr. W:

You killed the messenger without bothering to read the message. If you had read the article, you would have noted the author was reporting the testimony of the Clinton whitewash and Trump witch hunt perps, not spinning a conspiracy theory out of whole cloth, as did the witch hunt perps.

You obviously have no desire to learn the truth. Go back to Colbert and MSNBC.

Aren’t a bunch of witches facing jail time as a result of the “witch hunt”?

I watch neither MSNBC or Colbert (though I did enjoy his previous iteration which was an amusing send up of O'Reilly. But it is because Bart lets the right wing equivalents do his thinking for him that he makes so many careless blunders. Like the present case: conservatives point to the fact that Page, one of the nearly three dozen lawyers or other stuff working for Comey (R) and then Mueller (R), told Congress in private hearing that Justice prosecutors told them that would not prosecute Clinton based on the stated recklessness mens rea. A ha, the lemmings shout, what other explanation for this refusal before the investigation was finished other than perfidy and skullduggery?

Well, there could be another explanation. Like that under Gorin the statute was likely constitutionally infirm under the bare stated mens rea (as I've discussed here about half a dozen times and as is explained here: ).

Yet another examples of the partisan lemming leap: sloppy reasoning based on selective evidence with a foregone conclusion on an area they're not educated in...


The thing is, at some point you think they'd be mad at such media for misleading then into making the kind of foolish claims we debunk from our two regularly. But no, they keep going back for more sand to use as the foundation for their partisan houses...

Yes, we discussed Gorin and its ramifications here on several threads. Some people are impervious to evidence.

Mark Field is supposed to be in kumabya mode here agreeing with Brett and all but then Mr. W. instigated things. The Left (™) is so divisive.

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Mr. W: Like that under Gorin the statute was likely constitutionally infirm under the bare stated mens rea


There is no constitutional requirement for any level of mens rea. Felony DUI, statutory rape and a myriad of regulatory offenses are strict liability crimes.

The lesser mens rea of gross negligence can be the basis for homicide and lesser crimes like the misdemeanor storage of classified materials statute Clinton violated over 1,000 times.

However, lets assume the misdemeanor statute barring misstorage of classified materials required intent like the felony statute baring provision of classified materials to uncleared persons. The proof Clinton intended to violate both statutes is overwhelming.

State briefed Clinton on the law and Clinton signed a non-disclosure agreement acknowledging she understood the law.

The sheer volume of violations is further circumstantial evidence Clinton made no mistake.

Finally, there is evidence the bureaucracy warned Clinton she was breaking the law.

The Obama Justice Department and FBI had no legal basis to decline to prosecute Clinton.


Of course Bart just ignores Gorin and does the equivalent of stomping his feet, but responsible DOJ prosecutors can't do that. Partisan conspiracy theorists can of course.

Again, remember in past discussions Bart and other conservatives could not point to any post Gorin convictions or prosecutions analogous to Clinton's situation.

No, here's what happened. Conservative conspiracy theorists like Bart *need* for emotional partisan reasons for their political enemies to be guilty of something. Not content to argue they are merely wrong or have bad policy they need to 'weaponize' the law against them. Hillary can't just be wrong, she must be jailed. And with that foregone conclusion they continue to fall, like Wiley Coyote, for sloppy reasoning based on selective evidence from dubious sources. Here Bart led with 'a ha, they refused to prosecute on gross negligence before the investigation was done even so there must have been a conspiracy!' He did this even though he has had the Gorin requirement that gross negligence can't be the mens rea pointed out to him here about a half dozen times here, making him look similarly foolish in past discussions. But he took the lemming leap again, got caught again, and now instead of learning and growing as a person he's just changing the goalposts and flinging anything he can as cover for the fact that he fell for it AGAIN.

To return to the OP, the fact that most professional journalists will neither follow the Bart's of the world in making such silly, repeated mistakes is why the Bart's of this world think it is the journalists! that are the biased ones...

In short, these poll numbers look great for McCain! WMD's will be found and I guarantee a Romney victory, and a refusal to prosecute based on gross negligence for the offense in question can only mean a whitewash was afoot!

Bart's just really bad at drawing conclusions about this type of thing, and so are most conservatives. That in itself is a problem, but it's compounds when they then distrust and castigate the media for not endorsing their terrible conclusions.

Even Politifact isn't buying it. She exchanged classified information on an insecure server, and did it deliberately, on more than one occasion where the documents were marked as such, and considerably more occasions when she would have known the contents were classified even if not marked.

It is taking the risk that requires the intent, not that the risk result in a leak.

And Brett proves that he too, typical conservative, just can't learn the (a?) lesson. Brett knows he's not a lawyer, but you'd think he'd at least *read* the Gorin decision that those of us with legal education have been pointing to here, or at the least read what even better educated and trained people have been saying about it, such as in the link I provided, which says clearly that Gorin requires not just the 'intent to take a risk' that Brett so confidently (and ignorantly) hangs his hat on now, but “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.”

These lemmings, why do they keep leaping?

If they had any shame or integrity they'd say 'huh, I didn't know that. I still think Hillary is fishy, but I guess my charge that prosecutors saying they won't charge under gross negligence (Bart) or my claim that the fact they didn't argue that she 'deliberately' exchanged 'classified' information on an unauthorized server means she must have been guilty and therefore media outlets that didn't report so and prosecutors who didn't indict thereon were in on a conspiracy (Brett) really is undercut by Gorin. I have to think more on this issue and be more careful in making conclusions about it, and things like it, in the future.'

But extreme partisans and propagandists don't have shame or integrity. They have goals.

Don't retreat, reload!

"Mark Field is supposed to be in kumabya mode here agreeing with Brett and all but then Mr. W. instigated things."

My sense of humor is apparently too dry and understated sometimes.

Brett: She exchanged classified information on an insecure server, and did it deliberately, on more than one occasion where the documents were marked as such, and considerably more occasions when she would have known the contents were classified even if not marked.

Even assuming Clinton's subordinates sent her emails illegal cutting and pasting sections of classified information without proper markings, Clinton knew most off the subject matter of her work was classified and very intentionally conducted ALL of her work on an unauthorized and unsecured private email system.

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