If you want to know why this country is so divided, look no further than the media. They turn everything into conservative vs liberal, Republican vs Democrat, even when it’s not pertinent to the story being reported.
I give you two examples from diverse sources.
First, a FOXNews headline reads:
Supreme Court Justice Jackson gets support from conservatives in first majority ruling
I laughed out loud! That headline, and the accompanying story, distort the internal process of how the justices decide which among them will write an opinion.
The subject of the ruling is boring even to me. (But if you are having trouble falling asleep, you can read it here.)
I realize I’m just a dumb working class guy who went to public schools, so what ‘conservative’ or ‘liberal’ has to do with that ruling (in the words of Jimmy Buffet) “plumb evades me”. But the media can’t help themselves.
Besides, what exactly is a “conservative” or “liberal” Supreme Court justice? History has proven those labels are meaningless in the context of judges. Except to the media who use them as short hand in place of thought-provoking content. (The broadcast media, where most content is based on sound-bytes, is even worse.)
The second story illustrating the media nonsensically referring to judges’ politics makes less sense (if possible) than the Fox story. It’s from the Associated Press about a recent obscure ruling from the federal 5th Circuit Court of Appeals relating to charter fishing boats, which (again if you need a cure for insomnia) can be read here.
I’ll briefly tell you about this ruling because it is relevant to how the media pushes their divisive narrative.
To set the scene, this is how the opinion in the case begins:
“The shores of the Gulf of Mexico are home to many charter boats. These modest vessels range in size from thirty to forty feet, and usually serve small businesses. When a charter-boat captain is not using the ship for personal recreation, he or she charters a trip for six to eight passengers, for sightseeing or some similar purpose. This is the type of boat a few friends might reserve for a fishing trip off the Galveston coast. And although recreational fishing is one of a charter boat’s primary uses, the number of fish caught by anglers aboard a charter boat is relatively small; charter-boat fishing accounts for an estimated 0.20% of annual fishing in the Gulf of Mexico.”
The United States Department of Commerce enacted a regulation requiring these charter boats, at their own expense ($3,000 installation, $50 – $75 monthly service fee), to be equipped with GPS which will be constantly monitored by the feds, in order “to conserve and manage the fishery resources found off the coasts of the United States”. As the court points out, it’s unclear how this economic burden on small business owners will accomplish the government’s ability to “conserve and manage” two-tenths of one percent of Gulf of Mexico fishery resources.
(The ruling doesn’t address that fishing is just a pretext for this regulation.)
So how did the AP describe this ruling? Here’s the story.
Pay particular attention to this sentence:
Along with [judge) Elrod, nominated to the court by President George W. Bush, the case was decided by judges Priscilla Richman, also a George W. Bush nominee; and Andrew Oldham, a nominee of President Donald Trump.
How does who nominated the judges have anything to do with the ruling? Including that sentence is nothing more than a gratuitous remark to… well… I’m not sure to what end exactly.
It was not merely a passing observation either, because the reporter had to exert some effort to write that sentence. Court decisions list the names of the judges who participated — but not who appointed them. You have to search for that information elsewhere.
I’ve written before that the current politicization of the judiciary traces back to the 1987 Senate confirmation hearings for Robert Bork’s nomination to the Supreme Court.
The part of that article relevant to this discussion is this:
At the time of his nomination, Bork was already a federal Judge on the prestigious District of Columbia Court of Appeals, which required he be confirmed for that position. So he was already deemed qualified to be a federal judge by the Senate. Prior to serving on that Court, Bork was a widely respected legal scholar, and Yale law professor. His intelligence and legal acumen were beyond question. But Bork had a fatal flaw that disqualified him for the Supreme Court — at least to Democrats. He was both a brilliant legal scholar — and a conservative…
From that point forward, it seems a judge’s political label became more important than legal ability. Which has brought us to the place where that AP story considered it essential to include the party of the President who nominated each of the judges in a story about a court ruling on an obscure administrative regulation.
To illustrate how silly inclusion of those nominations is, I would ask this: If, as that sentence appears to imply, these judges (having been appointed by Republican presidents) are ‘conservative’, why didn’t they uphold the boat owners’ claim of violation of their 4th Amendment rights, instead of expressly declining to do so?
The judges merely suggested there may be a constitutional violation, but then decided the case based on violation of the Administrative Practices Act. Is declining to find a violation of the 4th Amendment conservative… or liberal? I can plausibly argue that either label applies. So what was the point of including that sentence?
The fact that such labels are meaningless, particularly when applied to judges, is apparently irrelevant to the current protocol for media reporting about court rulings. That contributes to political division, while serving no evident purpose.
But I’m sure the writers at FOX and the AP will insist the “public has a right to know” who appointed the judges! To which I reply – so what?
The public right to know — with which I entirely agree — isn’t the issue. The issue is: does inclusion of that information contribute to public understanding of the law? It does not.
I know from years of experience teaching, writing, and public speaking about the law, the vast majority of lay citizens are generally only interested in who won a legal case, and in easy-to-understand terms why a court reached their decision. I’ve never been asked who appointed a particular judge – and wouldn’t know the answer if I had been. If any member of the public cares who appointed a judge, it’s only because the media have mislead them to think it matters.
Aside from being meaningless, media stories about judicial rulings that include a judges’ politics only stoke the fires of controversy while contributing nothing to civil discourse or understanding the law. But the media don’t seem to care.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.