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Much Ado About Court Packing

By Ben L. Kaufman · June 12th, 2013 · On Second Thought
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Language abuse — as opposed to abusive language — is as old as language itself. 

After 50-plus years of reporting and editing, I should be used to it, but I’m increasingly irritated by its deliberate, partisan misuse. Too often, speakers who know better knowingly mislead by misdirection or misuse of apparently clear words. 

It’s the verbal equivalent of Reagan posing in the Rockies when he announced some new appointment or plan to trash the environment. He got away with it. People wanted to believe him and to believe in him. That kind of credulity doesn’t dignify reporters. We’re supposed to call speakers out on this kind of abuse. 

The latest example to set my teeth grinding is the GOP accusation that Obama is trying to “pack” the U.S. Court of Appeals for the D.C. Circuit. There are three vacancies. Obama nominated three lawyers for the Senate’s “advice and consent.”  

Accusations of court packing come from Sens. Chuck Grassley of Iowa and Mitch McConnell of Kentucky. It infuriates them that the D.C. appeals court balance of active judges — four Republican and four Democrat — would be tilted by three new judges appointed by Obama. Obviously, it wouldn’t be court packing if Republicans filled the three vacancies; that would be judicious.  

Why reporters and opinion writers stenographically repeat GOP “packing” accusations is beyond me unless they don’t know what court-packing means. In the 1930s, the nine U.S. Supreme Court justices frustrated one FDR recovery effort after another during the Great Depression. He wanted to expand the High Court by adding justices of his choosing to assure a court majority that agreed with his New Deal. 

His proposed legislation would have allowed him to nominate a new justice for every then-current justice over age 70. That would have guaranteed a more amenable court. FDR’s plan died in committee but his failed effort gave us the idea and phrase, “court packing.” 

By any rational understanding, the latest iteration of GOP opposition to anything a liberal president proposes is not “court packing.” 

Reporters who go along unquestioningly because Grassley and McConnell are GOP leaders, even when Republicans shamelessly prevaricate, are complicit in misleading voters. 

But as a friend recently said, he assumes stupidity and/or ignorance until someone offers a credible, malign explanation for otherwise puzzling action or inaction. I’m not sure I would grant that escape in this case.  

News stories usually say the D.C. circuit appeals court is second only to the Supreme Court because it rules on so many government policies and actions. It also appears to be where presidents of both parties look for Supreme Court nominees. By way of contrast, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati sees few of its decisions and judges make it to the Supreme Court.  

The three open seats on the 11-member D.C. court were created by the semi-retirement, called “senior status,” of three judges. Senior status allows presidents to nominate men and women to fill the vacated “active” seats. 

With rare exception, before they are named, nominees have undergone excruciatingly deep probes by federal authorities. 

It helps that federal trial judges nominated to a federal appellate or the Supreme Court survived earlier investigations and won Senate consent/approval. But Article II of the Constitution makes it clear: Nominating federal judges and justices is a president’s job for every vacancy on every federal district trial court, circuit appellate court and the Supreme Court. However, no president in modern memory has managed to forward as many nominees as there are vacancies on the dozens of federal courts. That’s why many senior semi-retired judges keep working and so many civil cases take so long; courts are short-handed. 

A federal judicial nomination is a chance to affect history. Presidents seek sympathetic and demonstrably able candidates who can pass the constitutional “advice and consent” role assigned to the Senate. There have been exceptions and mistakes. Nominations have been withdrawn or nominees have more or less gracefully opted out. 

Senate votes rarely come quickly, shortchanging all of us.  Even after senators in affected states agree on a nominee or agree not to disagree, Senate partisanship and procedures kick in. McConnell/Grassley accusations foreshadow a nasty fight over Obama’s three nominees as well as the already dilatory treatment of other federal judicial candidates. 

That, and not “court packing,” is what reporters should be digging into.



CURMUDGEON NOTES


The Enquirer’s MasonBuzz.com wasn’t honest with readers about the source of its story promoting “National Heimlich Maneuver Day.” It was posted by a reporter but carried the byline of Melinda Zemper. She’s not a reporter and she wasn’t identified as a “contributor.” Zemper is public relations professional whose clients include Heimlich interests. She was helpful when I sought out Phil Heimlich for a story recently. That’s her job. So is providing copy ready for publication. With so few reporters and editors, news media are evermore open to such PR material as “news.” Traditional journalism ethics requires that we be told the writer’s underlying interest in the story if it’s not by a reporter or contributor.

MasonBuzz.com failed that test.  

London’s Guardian scored its first of two coups when it reported the Obama administration is collecting our cell phone records in the name of national security. The Washington Post followed with its story about spying through Internet sites such as Google. Both relied on the same source, one of thousands of private contractor employees with top security clearances. 

The Guardian’s second coup was its interview with the American who revealed that NSA cell phone tracking: Edward Snowden, 29. The Guardian called him a “former technical assistant for the CIA and current employee of the defense contractor Booz Allen Hamilton. Snowden has been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell.”

The paper said it named Snowden and published his online video statement at his request. From the moment he decided to disclose numerous top-secret documents to the public, the paper said, Snowden eschewed the protection of anonymity.

"I have no intention of hiding who I am because I know I have done nothing wrong," he told the Guardian, although he wants to avoid the media spotlight. "I don't want public attention because I don't want the story to be about me. I want it to be about what the US government is doing." That won’t be easy, he conceded. "I know the media likes to personalise political debates, and I know the government will demonise me."

Still, he told the Guardian, "I really want the focus to be on these documents and the debate which I hope this will trigger among citizens around the globe about what kind of world we want to live in ... My sole motive is to inform the public as to that which is done in their name and that which is done against them." 

Whistleblower Snowden is the civilian version of Army Private Bradley Manning, who gave military and diplomatic cables to Wikileaks. Both were low-level intelligence specialists with high-level security clearance.  Both claim to have acted according to conscience, hoping to save rather than harm our nation. There is a difference, however, that I haven’t seen or heard in facile news media comparisons of Snowden to Manning or Daniel Ellsberg, an academic defense analyst who revealed the Pentagon Papers. Manning’s military and diplomatic cables and Ellsberg’s study of the Vietnam war were in the broadest sense histories. Snowden’s revelations involve current and future data collection and analysis. 

Mother Jones magazine/online also scored two scoops in recent days. It says the Justice Department wants to hide an 86-page opinion by the Foreign Intelligence Surveillance Act (FISA) Court that says the government violated the spirit of federal surveillance laws and engaged in unconstitutional spying. Mother Jones’ bureau chief in Washington, David Corn, says the secrecy effort is a response to a Freedom of Information suit by the Electronic Frontier Foundation. 

In its second coup, Mother Jones says the FBI raided the Winchester, Ky., home of corporate cybersecurity consultant Deric Lostutter. As hacker KYAnonymous, he was instrumental in making the Steubenville rape case a national story. Mother Jones says Lostutter “obtained and published tweets and Instagram photos in which other team members had joked about the incident and belittled the victim. He now admits to being the man behind the mask in a video posted by another hacker on the team's fan page, RollRedRoll.com, where he threatened action against the players unless they apologized to the girl ... According to the FBI's search warrant, agents were seeking evidence related to the hacking of RollRedRoll.com ... If convicted of hacking-related crimes, Lostutter could face up to 10 years behind bars — far more than the one- and two-year sentences doled out to the Steubenville rapists.”

Local news media embrace an uncritical “boost, don’t knock” approach to local festivals. Even so, they ignored a great photo op at the opening of Summer Fair. Hundreds of people stood in line in the Coney Island parking lot while two people — at one table — took admission money. Some people waited more than 30 minutes to get in. Parking was free, so no one knows how many potential customers took one look and drove away. 

 • A recent Enquirer cover story confirms what a lot of people have known for years: Go elsewhere for sophisticated cancer care. What’s news is the admission in a proposed UC major investment to bring advanced cancer care here. 

Another Enquirer cover story made my prehensile toes curl with joy. The Creation Museum is evolving to allow us to return to tree tops ... via zip lines. 

I’m still unhappy about NPR’s decision to kill Talk of the Nation carried here 2-4 p.m. Monday-Thursday. It was the nation’s best long-format public radio interview program, sort of a New Yorker of the air. 

Starting July 1, WVXU plans to fill the newly vacant 2-3 p.m. gap with an expanded Cincinnati Edition using current staff as hosts. I hope it retains long-format interviews. 

With its limited resources newly devoted to the expanded Monday-Thursday Cincinnati Edition, WVXU is ending Maryanne Zeleznik’s Thursday morning long-format Impact Cincinnati interview show and the staff’s Saturday and Sunday one-hour weekend Cincinnati Edition. There were good regular segments and I hope they’ll be woven into the new format. 

To fill 3-4 p.m. Monday-Thursday, WVXU is bringing in The Takeaway. WVXU says it’s is a co-production of WNYC Radio and Public Radio International, in collaboration with New York Times Radio and WGBH Boston. The Takeaway carries the tagline, “Welcome to the American Conversation.” We’ll see. Talk of the Nation set a very high standard.

Sunday’s Enquirer Forum calls on Ohio to expand Medicaid despite a shortage of physicians and others to cope. In part, the paper notes, few med school grads choose primary care. Reasons aren’t that complicated. Relatively low salaries paid to primary care physicians mean docs will spend a good portion of their adult lives repaying loans that often began as undergrads and compounded while adding med school loans. Another reason is that Medicaid pays even less than Medicare for office visits and treatments. That’s helps explain why primary care docs aren’t better paid and some practices limit their Medicaid and Medicare patients. 

The Enquirer should dig still deeper into related issues. Why should taxpayers provide health insurance (Medicaid or unpaid emergency care) to badly paid workers whose major employers provide little or no health care insurance? Why do we as a nation offer such niggardly support to med students that they opt for higher paid specialties which ease loan repayments? (This isn’t a personal beef. Our daughter, whose board certifications include family practice, went through medical school on a UC scholarship but many classmates graduated with life-limiting debt.)

NPR had a long story on how jelly fish are multiplying at a rate that creates or exacerbates problems in the oceans. These prehistoric creatures survive, multiply and prosper without a spine or brain. Apt analogies encouraged. 

The cascade of information about NSA snooping has an unintended benefit. Pervasive federal intrusions no longer are “just a journalists’ thing.” Millions of Americans now know their cell phone calls and email/Internet data are being collected and analyzed by NSA computers and agents. This growing consciousness may provoke a groundswell that could provide brains and spine for Congress to correct police state legislation passed after 9/11. 

Eric Holder — still U.S. attorney general when this was written — is almost contrite about Justice Department grabbing reporters’ telephone and email records. He now says he won’t prosecute reporters just doing our jobs. Any journalist who accepts his assurance lacks the minimum skepticism required for our trade. Holder serves at the pleasure of a president whose antipathy to leaks recalls Nixon’s creation of the Plumbers.

NKU dropout Gary Webb shared the Pulitzer Prize in 1990 for San Jose Mercury’s coverage of the Loma Prieta earthquake. Then he took on the CIA in his sometimes-overreaching 1996 Mercury series, Dark Alliance, which said crack cocaine was being sold in Los Angeles’ black ghettos to support CIA-supported contras in Nicaragua. The LA Times and others — including the NYTimes and Washington Post — were embarrassed by Webb and the nowhere San Jose paper. They went all out to discredit Webb and his findings. Webb’s errors and inadequately supported assertions gave critics their opening. Irrespective of the the national papers’ attacks inaccuracies and misdirection, they ruined Webb’s career and he committed suicide. Years later, even former critics acknowledged the generally substantiated core of Webb’s series: CIA ignored Contra cocaine smuggling and its spread of crack in U.S. inner cities. A movie is being made about Webb and the CIA series, Kill the Messenger.

NPR’s Morning Edition described in broad detail an NSA data center going up outside Salt Lake City. Computers are so large and hot that they will need 1.5 million gallons of cooling water daily. I wish NPR told me where that water was coming from and where it would go after being used to cool the computers.  

With friends like this ... Aljazeera.com reports that Syrian rebels executed a 15-year-old Aleppo coffee vendor in front of his family because the killers thought a common Syrian retort was blasphemy. The youth apparently refused someone coffee on credit, saying, “Even if Mohammad comes down, I will not give it as a debt.” 

Obama’s meeting at Sunnylands, the Annenberg estate near Palm Springs, Calif., pricked my nostalgia. In the early 1940s, my father, an Army physician, was stationed in Palm Springs. A visionary local developer offered Dad some land. As our family legend goes, that friend assured my father that “after the war,” Palm Springs would boom. Headed for combat in Europe and uncertain what might follow, Dad said thanks, but no thanks. Oh, well. If Dad had taken his friend’s offer, last week’s Obama-Xi meeting could have been on a Kaufman desert hideaway, “10,000 Lakes.”



CONTACT BEN KAUFMAN: letters@citybeat.com



 
 
 
 

 

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