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The FOX News Spin On Rehnquist Has Already Begun

Reported by Ellen - September 4, 2005

Moments after Chief Justice William H. Rehnquist's death had been announced, Sean Hannity and Alan Colmes were on the air with a special program full of GOP spin. The only surprise was a true voice of opposition from Alan Dershowitz near the end.

The first piece of GOP spin that I caught came from Judge Andrew Napolitano, FOX News' Senior Judicial Analyst. The level of partisanship in FOX News' analysts never ceases to amaze me. Merriam-Webster's online dictionary defines analyze as "to study or determine the nature and relationship of the parts of by analysis." So you might think there'd be some overview and perspective beyond just partisanship but on "fair and balanced" FOX News, "analyst" is more often than not another word for "advocate."

Napolitano said that there were "'innuendos' that Rehnquist was insensitive to African Americans. None of that was manifested in any of the decisions that he wrote."

Comment: I think there are a lot of African Americans who would say that Rehnquist's written concurrence in Bush v. Gore was a manifestation of insensitivity. Also, the accusations were a lot stronger than "innuendos" and a lot harsher than "insensitivity." For example, according to Wikipedia,

During the 1986, U.S. Senate hearings on his chief justice nomination, several people came forward to complain about what they viewed as Rehnquist's attempts to discourage minority voters in Arizona elections when Rehnquist served as a "poll watcher" in the early 1960s.

The Washington Post reported that Rehnquist's memo defending "separate but equal" school segregation, written as a young law clerk, "caused a furor" when it surfaced during his 1971 confirmation hearing.

Colmes did not dispute Napolitano's downplaying of Rehnquist's history. Instead, Colmes said, "Also, interestingly enough, some of the things he was accused of believing ...actually were not his personal beliefs but what he instituted as a government employee - some of the same arguments are now being suggested will be used by Judge Roberts in his confirmation hearings."

Of course, Napolitano picked up that ball and ran with it. "You are not always your own person because you're not saying what you want the law to be, you are saying what the law is. (He's) the messenger, not the message, and (he) can't be held accountable for it."

Colmes then said Rehnquist was "known to favor strong law enforcement." That's a nice way of saying Rehquist was known to favor limiting the rights of the accused. As WaPo reported, "(In) 1991 Chief Justice Rehnquist wrote the opinion for the court in a case called Arizona v. Fulminante, holding for the first time that coerced confessions could be admitted as 'harmless error' if other evidence was sufficient to establish guilt."

Mr. Gas Prices Are Ridiculously Cheap, David Asman joined the discussion. He claimed, "Some of the more liberal Democrats on the Judiciary Committee, once they got wind of some of his earlier opinions really spoke out against him dramatically but he managed to woo the Judiciary Committee." Asman didn't mention that those "earlier opinions" had to do with supporting segregation nor that the acrimonious hearings lasted five days.

Next up was reporter Megyn Kendall who can always be relied upon to adopt the FOX News spin as her own. She didn't disappoint this time.

Sean Hannity threw out his favorite (and misleading) lines about the confirmation of "very liberal" Ruth Bader Ginsburg being "approved overwhelmingly because elections matter, right?" (Comment: In fact, Bader Ginsburg was a centrist whose nomination was suggested by Republican Senator Orrin Hatch to President Bill Clinton. It was hardly a matter of Senate Republicans respectfully acceding to the will of the opposition.

Kendall, supposedly an attorney, was ignorant of the truth. She said, "Well, that's certainly - I mean, that's a fact - that, you know, this is something folks needed to argue over if they had an objection to it back when the presidential election was taking place and the president has the prerogative to appoint whomever he wants.

Wrong again, Attorney Kendall. The president has the prerogative to NOMINATE whomever he wants. The Senate has the power to confirm or not confirm.

Nobody corrected her.

Last up was Alan Dershowitz. Dershowitz told Colmes that Rehnquist's legacy will be as one of the biggest judicial activists. He cited Bush vs. Gore as an example. (It was about time somebody mentioned that case. It will probably be Rehnquist's most famous one.)

Dershowitz said, "The decisions of Justice Rehnquist are not taught in law schools as great decisions. He'll be remembered primarily for his votes rather than for the content or quality of his decisions. And it's consistent throughout his life. He started his career by being a kind of a Republican thug who pushed and shoved to keep African American and Hispanic voters from voting (You could hear Hannity trying to interrupt here but Dershowitz didn't let him). He had a restrictive covenant in his own lease which precluded the sale to Jews. There were so many things in his background that were extremely right wing."

Rather than have a real debate on "We Report, You Decide" FOX about Rehnquist's record, Dershowitz's interview was suddenly terminated. The remaining guests attacked Dershowitz and the left as being "whacky" hypocrites "regurgitating" old arguments. But the only one of Dershowitz's charges that was directly refuted was the one about judicial activism.

Comment: In ignoring the controversies about Rehnquist's alleged racism, and trying to demonize those to whom it matters, FOX News has proven once again its own racial insensitivity.

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