Outside Voices: Keith Bybee On The Media's Role In Selecting Impartial Justices
Last year's long season of Supreme Court nominations and confirmation hearings featured several memorable moments: a serenely composed John Roberts fielding questions from the Senate Judiciary Committee without notes; an embattled Harriet Miers withdrawing as a nominee in order to serve the "best interest of the country;" and a tearful Martha-Ann Alito hastily leaving the confirmation hearings as Sen. Lindsey Graham apologized for the way in which her husband, Samuel Alito, was being questioned.
These moments made for good viewing and good reading. But did they make for good news coverage?
In judging the quality of coverage, I would argue that we should be less concerned with whether the media provide good theater and more concerned with whether media play a constructive role in the judicial selection process.
Generally speaking, the judicial selection process seeks to identify impartial individuals capable of making judgments on the basis of the facts and the law in the case before them. We do not expect judges to come to a controversy without any views on the matter whatsoever. Impartiality is not the same as ignorance; a judge without any pre-existing legal views would be unqualified for office. The key question is whether a judicial nominee's pre-existing views have petrified into pre-judgments, closing the nominee's mind against any new arguments and information she may hear on the bench. We want our judges to give litigants a genuine hearing rather than just the pretense of being heard.
Did the media coverage of last year's Supreme Court selection process assist or impede the search for impartial justices?
Of course, in asking this question, I don't mean to suggest that the media are a single entity. A wide variety of media outlets operate in different contexts and it is important not to praise — or damn — the press without paying attention to the variation in the field.
Having said this, I do think there is a problem with the job some media organizations have done. The problem I see is not one of biased or partisan reporting. Instead, the problem is one of providing adequate coverage.
In my view, there was reason to question whether the media were devoting sufficient resources to covering the Supreme Court even before President Bush made his first nomination last year. In recent decades, the size of the Supreme Court reporter pool has markedly diminished. Newspapers around the country have pulled their Supreme Court reporters and now rely on major papers and wire services for reporting — a move that makes in-depth newspaper coverage of locally significant Supreme Court cases less likely.
The television networks have also reduced their investment in Court coverage. Of the broadcast networks, ABC News is the only one with an on-air reporter who exclusively covers the Supreme Court.
The reduced number of newspaper and television reporters dedicated to the Court beat means that news organizations are less able to communicate a complete picture of the Court and its work. This results in a less informed public when it comes time for the selection of a new justice; the public is less likely to know what the sitting justices do or whether any of them live up to the ideal of judicial impartiality (and, to be fair, these problems are only exacerbated by the Court's own resistance to press coverage).
One might argue that any deficit in regular reporting on the Court is compensated for by the media blitz that accompanies the announcement of a new Supreme Court nominee. And it is certainly true the major media outlets devote significant time and space to reporting on the President's choice and the Senate's deliberations.
But even at the very height of media attention to the Supreme Court selection process last year the reporting remained incomplete in important ways. Mark Obbie, a professor of journalism at Syracuse University's S.I. Newhouse School of Public Communications, recently conducted a study of newspaper reporting during the week following the announcement of Samuel Alito's nomination. Obbie looked specifically at news articles in The New York Times and The Washington Post on the grounds that these two national papers, with their deep resources and seasoned newsrooms, set the standards for less prominent newspapers and other media.
Consistent with their stature and capacity, Obbie found that The New York Times and The Washington Post "dwarf many of their media brethren in the scope and heft of their reporting on the nomination." But Obbie also found that about half of the nomination coverage in the two newspapers could be classified as "results-oriented legal journalism," a term Obbie defined as "reporting on the outcome of a court case without acknowledging the legal authority that the court cited in reaching that outcome." By ignoring the legal grounds for court action, the two papers inevitably conveyed the impression that judges are policymakers who simply dictate their preferred outcomes. Such results-oriented journalism does not help the public make judgments about a nominee's impartiality because it renders the notion of judicial impartiality irrelevant. It is only what the judge wants, and not whether she will give litigants a genuine hearing, that matters.
Are Chief Justice John Roberts and Associate Justice Samuel Alito impartial judges? Let's hope so. If Roberts and Alito are indeed impartial, can the media be credited with playing a constructive role in their selection? Not really. News organizations often seem not to devote either enough or the right kind of attention to the Court and judicial selection to foster informed public assessments of a nominee's approach to judging.