CBS News - Comical, Comical

Mickey Kaus steps up to the outrage swirling the right half of the blogosphere - did CBS News misrepresent Ken Starr's comments about filibusters and the "nuclear option"?

Here is an excerpt of the transcript, via Mickey:

BORGER: [CBS News] ... But this fight goes way beyond Senate rules. This is a monumental battle about the future of the courts. Just who gets to sit on the Supreme Court? And should we appoint justices who want to rule on everything from abortion to gay marriage to civil rights?

That's why many conservatives consider the fight over judges their political Armageddon. But conservative icon and former federal Judge Ken Starr says it's gotten out of control.

Mr. KENNETH STARR (Dean, Pepperdine University School of Law): This is a radical, radical departure from our history and from our traditions, and it amounts to an assault on the judicial branch of government.

BORGER: Starr, who investigated the Monica Lewinsky case against President Clinton, tells CBS News that the Republican plan to end the filibuster may be unwise.

Mr. STARR: It may prove to have the kind of long-term boomerang effect, damage on the institution of the Senate that thoughtful senators may come to regret.

BORGER: Still, Starr thinks all judges should be allowed a vote, even if they're Democrats ... [Emphasis added]

Mickey argues that "Borger does wrench the first Starr sentence ("radical, radical") into something approximating the context Starr says it was given in--not a discussion of the anti-filibuster "nuclear option," but of the new, Bork-era practice of voting against "qualified" judges if you don't like their judicial philosophy." 

Color us skeptical.  Here is how Bob Schieffer introduced the segment, back a bit in the transcript:

In Washington, an epic battle that has been threatened for months now may be coming to a head: the Republican threat to try to change Senate rules and do away with filibusters to make it easier to confirm some of the president's judicial appointments.

Nothing there, or elsewhere, about a "radical, radical" decision by the Democrats to withhold support for "qualified" judges.

However, the ground firms quite a bit for Mickey with his second point:

...it sure looks as if Starr, Burkean that he is, did indeed say that a rules change--which is what the "nuclear option" would involve-- might "boomerang" and do long-term harm, which is what Borger said he said.

Mickey makes the good point that in his e-mail, Ken Starr does not really take a firm stand on the advisability of the "nuclear option".

However, Mr. Starr appeared on Nightline with Ted Koppel last April 21 to discuss this very subject.  The $15 transcript is here, but I am waiting for a Lexis/Nexis eagle to drop one on me [Here we go, with commentary, from Joshua Sharf].

But while I wait, I see that the leftish leaning Douglas Tonks blogged Starr's appearance, and told us that "he's not sure he likes how the Satanic filibuster is being used, but he's not in favor of nuking it."

This commenter at another site saw the same show, and delivered the same quick take - "[Starr] said that... they should not get rid of the fillibuster."

Leaving us where?  Well, Patterico is critical of CBS for their use of the "radical, radical" quote, so one might argue that he and Mickey are debating at cross-purposes (hmm, Patterico argues just that in a follow-up - it pays to read all the way to the bottom).

Rush Limbaugh and Powerline can offer the Patterico variation, since their focus was also on "radical, radical".

And here is a bit more evidence that it was the "radical, radial" snippet that caught people's attention - an editorial in the online edition of the Indianapolis Star said this:

Frist's threat to go nuclear isn't setting off alarms only among left-wing organizations and Democratic operatives. Conservative legal scholar Ken Starr, the former Whitewater prosecutor who is now dean of Pepperdine University law school, told CBS News that the Republicans' plan is a "radical, radical departure from our history and our traditions, and it amounts to an assault on the judicial branch of government."

I would say that their misunderstand was complete, notwithstanding Mickey's assertion that CBS reporter Borger "wrenched" it into context.

I'm riding with the Virtual Mongol Horde on this one - CBS ought to release the videotape and let us see what's what.

MORE:  Next time I'll stay in bed - Wizbang had the Indy Star editorial *and* the AP story, which popped up in Philly and London.  "Radical, radical" it is.

Comments

[AST]

Funny how this man so vilified and hated by the left has become an authoritative sage on an issue in which one would expect him, as a former Appeals Court judge, to be biased.

An "assault on the judicial branch"? Well, somebody needs to do it.

I was taught that we had a system of checks and balances, but I don't see any checks on judges who have no restraint about overruling democracy. The only way to overrule a Supreme Court decision is to appoint new judges when you get the chance or amend the Constitution. Neither seems like much of a check, nor very practical now that we have 50 states instead of 13.

"a radical, radical departure from our history and our traditions"? How about redefining marriage to include same-sex unions? The reason people like me are so alarmed is that the courts have been overturning centuries of history and traditions.

[Forbes]

Via Ramesh Ponnuru, in The Corner, here's an email response from Ken Starr regarding the quotes CBS used:

"In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The 'radical departure' snippet was specifically addressed -- although this is not evidenced whatever from the clip -- to the practice of invoking judicial philosopy as a grounds for voting against a qualified nominee of integrity and experience. I said in sharp language that that practice was wrong. I contrasted the current practice . . . with what occurred during Ruth Ginsburg's nomination process, as numerous Republicans voted (rightly) to confirm a former ACLU staff lawyer. They disagreed with her positions as a lawyer, but they voted (again, rightly) to confirm her. Why? Because elections, like ideas, have consequences. . . . In the interview, I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that's the second snippet), but I likewise made clear that the 'filibuster' represents an entirely new use (and misuse) of a venerable tradition. . . .

"[O]ur friends are way off base in assuming that the CBS snippets, as used, represent (a) my views, or (b) what I in fact said."
http://www.nationalreview.com/thecorner/05_05_08_corner-archive.asp#062838

[Lurking Observer]

AST:

It's a lot like the descriptors appended to Judicial Watch.

When Judicial Watch wanted Clinton documents, they were a "conservative" advocacy or watchdog group.

When they wanted Dubya documents, they were a non-partisan or private group.

When they go after Democrats, sacre bleu!, they revert to being conservative.

But remember, there's no bias in the press, except at FauxNews!

[Stephen M. St. Onge]

      Even if Starr had meant what CBS says he meant, I don't see any reason to pay attention until and unless he explains why it is a bad idea to end judicial filibusters.

      But by now everyone ought to know better than to take CBS News seriously.

THE SAUDS MUST BE DESTROYED!

[Don Meaker]

The checks in balances on judges are:
1. Judges are appointed by the Executive, with advice and consent of the Senate (part of Legislature).
2. Judges can be impeached
3. Judges decisions can be overturned on appeal
4. The Congress and President control the limits of jurisdiction.
5. Cases must be brought by prosecutors, part of the Executive. Funding for prosecution is by direction of Congress, and must not be vetoed by the Executive.
6. Trial by Jury reserves findings of fact to the jury. The least controlled thing in the world is what goes on in a jury room. The jury can find the defendent not guilty because of doubts as to the fairness of the law. That is what happend during prohibition.

Ref case 4: For example: Congress could pass a law banning partial birth abortion, and also prohibit judicial review of the constitutionality of the legislation, or create a separate court as the venue where constitutionality could be reviewed.

Each branch has its part to play in interpreting the constitution. Jackson vetoed the extention of the Bank of the United States based on its constitutionality.

[Kevin]

And here is a bit more evidence that it was the "radical, radial" snippet that caught people's attention - an editorial in the online edition of the Indianapolis Star said this:

Frist's threat to go nuclear isn't setting off alarms only among left-wing organizations and Democratic operatives. Conservative legal scholar Ken Starr, the former Whitewater prosecutor who is now dean of Pepperdine University law school, told CBS News that the Republicans' plan is a "radical, radical departure from our history and our traditions, and it amounts to an assault on the judicial branch of government."

Evidence comes from an on-line editorial?? Well there you go...case closed.

[Mick Wright]

Starr comes out against both using the filibuster and doing away with it... but isn't that also Frist's position? To clarify Starr's meaning, he should be asked if he supports Frist's idea: change the rules, but keep the filibuster for legislation.

[SteveMG]

It's clear that Starr is in, er, bed with Andrew Sullivan. He's a "conservative of doubt" just like Sullivan.

SWM Burkean traditionalist seeks SWM Oakeshottian anti-rationalist?

SMG

[walt]

Kaus is the one doing the Dowdification by snipping Starr's statements on Nightline. See

http://www.jsharf.com/view/archives/000411.html

Starr says the filibuster should not be used on judges, but should be kept for legislation. He says

"Well, the Senate has the raw power and has, in fact, used it once famously, in the process of considering the proposed elevation of Abe Fortas to the Chief Justice-ship. But I think it's imprudent and unwise for senators to invoke this important device. I think it is more apt, more appropriate for legislation but not for, for judging, I think, or for ruling on judges and voting on judges. I think that does trench on the independence of the judiciary. But even more so, I think that in our system of separated powers, the President does deserve a vote on his nominees, up or down. And especially when we're talking about the courts of appeals. We're not even talking about the United States Supreme Court."

[Just Some Guy]

I'd like to point out that Ken Starr isn't a Republican, doesn't socialize with Republicans, works for a law firm that does more business with Democrats and Democrat political machine donors/fundraisers, then Rep. counterparts, and is generally not liked by most Republicans.

Don't get me wrong, many many many grassroot Republicans don't know this and idolize him over the Starr Report(best selling romance novel it is), but those who run the country know Starr has been playing both sides against each other in his own best interest for a long time. He's very successful at what he does.

[Gentleman Farmer]

The issue is NOT what Judge Starr thinks, the issue is whether CBS is again being negligent in its handling of the news. http://glibandsuperficial.blogspot.com/2005/05/and-what-was-your-point.html

[kim]

Starry Starry Night,
Please let's get these judges right.
It's not really,
very easy,
To vote and win without a fight.
=============================================================

[kim]

Starry Starry Night,
Please let's get these judges right.
It's not really,
very easy,
To vote and win without a fight.
=============================================================

[CalDevil]

Rush is correct here. He's merely picking up on Ramesh's report at NRO of his email correspondence with Starr.

As to how this was characterized by the media and political insiders, one only needs to review this excerpt from last Tuesday's edition of the very, very inside beltway publication called The Frontrunner. Mickey's wrong here. Not only is the "radical, radical" quote highlighted, but it's clear that CBS intended to leave the misleading and false impression that Starr was claiming the Republicans were "assaulting" the judiciary, when in fact Starr says in the Ponnuru email that he said the very opposite. Once again, what's left of CBS's journalistic credibility is reeking.

Frontrunner excerpt follows:

"Ken Starr Says Filibuster Rule Change Is "Assault" On Judiciary.

The CBS Evening News (5/9, story 3, 3:00, Schieffer) ran a report on the "epic battle" over the filibuster in the Senate, reporting that the "Republican threat to try to change Senate rules and do away with filibusters, to make it easier to confirm some of the President's judicial appointments," may sound like "inside baseball, but it could have a dramatic impact on everything from abortion and same sex marriage to the death penalty and taxes." CBS (Borger) added, "Many conservatives consider the fight over judges their political Armageddon. But conservative icon and former federal judge Ken Starr says it has gotten out of control." Starr: "This is a radical, radical departure from our history and our traditions, and it amounts to an assault on the judicial branch of government." Borger: "Still, Starr thinks all judges should be allowed a vote, even if they're Democrats. During the Clinton years...lots of those nominees were blocked by Republicans in committee, you'll recall." Starr: "Exactly. I don't think that's particularly admirable either." At the close of the report, Schieffer said to Borger, "Seeing Ken Starr of all people coming out on what looks like the opposite side of many in the conservative wing at the Republican Party tells me that both sides here may be looking for some way out of this showdown that is coming. Do you get that sense, Gloria?" Borger: "I do get that sense. The polls are showing that the voters really want this wrangling to stop. I think Ken Starr is saying that those on the far right and those on the far left have both gone overboard, that the President ought to get the right to pick his judges.""

[Agent Tim]

Pardon the many trackbacks...MT went crazy for some reason. Great post...loved it.

[Miracle Max]

One 'a them posts where all you need to read is the first sentence to realize you so do not care what comes after . . .

[Patrick R. Sullivan]

Lost in all this is the blatant exaggeration about what the Republicans are doing. Today's NY Times quotes Harry Reid (D, 'From Hunger') saying that the Republicans are trying to undo a '217 year' tradition.

Meaning that the filibuster existed for the very first Senate. That happens to be a big fat lie. The Senate adopted the 'previous question' rule from the British Parliament, in 1789, which stated that anyone could move to cut off debate and vote, and if a MAJORITY agreed, so be it.

But, in seventeen years that only was done once. So, in 1806, in what appears to have been 'housekeeping', VP Aaron Burr suggested that the rule was unnecessary and ought to be dropped. And, it was, inadvertently creating the opportunity for windbags to delay Senate business when, thirty-one years later a group of Senators opposed to Andrew Jackson realized the possibilities of unlimited debate.

After that, it was still only used rarely until late in the 19th century, when Southern Democrats began to use it against to maintain white supremacy.

Finally, in 1917, when 11 pacifist-at-any-cost Senators--led by Robert LaFollette--prevented Woodrow Wilson from arming American Merchant Shipping in the face of threats from Germany to open unrestricted submarine warfare, public opinion became overwhelmingly opposed to the filibuster. That's when the first 'cloture' rule was voted in.

That rule was changed a few times, to the present requirement of 3/5 to stop debate. But, all throughout the 50s, 60s, and 70s there were attempts to return to the original majority rule of the first Senate of 1789. Mostly led by liberal Democrats such as McGovern, Mondale, and Humphrey.

In fact, in 1979, Robt. Byrd made exactly the argument Bill Frist looks poised to make next week; that the Constitution says the Senate gets to make its own rules, and one Senate is NOT BOUND by prior Senates' rules. He even laid out the procedural path to doing so by a simple majority vote. So, Frist is firmly in the traditional mold of Senate liberals. Hah, hah.

[TM]

to realize you so do not care what comes after . . .

Hmmph. A Mongolian Hordesman's gotta do what a Mongolian Hordesman's gotta do.

[TJ Jackson]

Come now Starr has stated he has never attacked the Republican position. Its sad to see yet more spin from the Left. Shame.

[sophy]

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