So the New York Times’s Adam Cohen, who had already distinguished himself with Bench Memos readers by a series of wildly distorted and untrustworthy pieces (see, for example, here, here, here, here, here, here, here, here, and here), has woefully failed to substantiate any of the charges he levels against Justice Scalia in his 2,975-word screed, which closes with a silly “What Is To Be Done?” manifesto. Frankly, had I realized at the outset that Cohen’s piece was available only to TimesSelect subscribers, I might simply have ignored it. But Cohen’s smear is significant because it reflects the unexamined bias against Scalia that is so prevalent among liberal journalists.
Want further proof? Well, let’s suppose that another justice had violated federal ethics rules on lots of occasions by failing to recuse himself in cases in which he owned stock in one of the parties. Let’s say that he permitted an activist ideological group to name an annual lecture in his honor and then continued to take part in cases in which that activist group submitted amicus briefs. Let’s imagine that, in a single speech, he responded to jurisprudential criticisms by ridiculously comparing his fellow justices to apologists for slavery and apartheid, blaming responsible critics for death threats from wackos, and volunteering his own views on which legislation Congress should enact and which treaties the Senate should ratify. Let’s say further that he attacked as reminiscent of the Soviet Union a proposal for investigation of misconduct by judges. That he publicly perpetuated sexist stereotypes by lauding female judges for their “sense of caring”. And that he fell asleep during oral argument.
As the hyperlinks in the preceding paragraph disclose, the justice I’m describing is Ruth Bader Ginsburg. Whether or not one agrees that all the particulars deserve criticism (and, at least with respect to the first, I’ve made clear that I don’t), the overall set is far more problematic than the flimsy charges against Scalia. But where is the media’s criticism of Ginsburg? While there are occasional critiques of particular episodes (such as the excellent Washington Post editorial discussed here), there simply is no sustained examination of Ginsburg’s actions. That fact makes it easy to recognize what really underlies the recent spate of hit pieces on Scalia: an ideological effort to manufacture scandal by demonizing a particular justice because he promises to help the Court retreat from the unconstitutional judicial power grabs that the typical TimesSelect subscriber reflexively applauds.
(Parts 1, 2, 3, and 4 of this series are here, here, here, and here.)