Unpacking the media's chase of a narrative

Or, why we're talking about a hypothetical when the world is on fire amidst a pandemic.

The last couple of weeks have shown the political press hasn’t lost its ability to either manufacture a story or bite into a political party’s talking points. 

You’ve probably been hearing a lot about “court packing,” where the Democrats are supposedly planning on expanding the number of justices on the Supreme Court should Joe Biden win. 

The drum beat of court packing has gotten louder and more consistent since progressives started sending up test balloons in 2019, when former Attorney General Eric Holder questioned the validity of the Supreme Court, arguing that

“Given the Merrick Garland situation, the question of legitimacy is one that I think we should talk about,” Holder said. “We should be talking even about expanding the number of people who serve on the Supreme Court, if there is a Democratic president and a Congress that would do that.”

A year later, as Donald Trump’s third nominee, Amy Coney Barrett starts her confirmation process today, the political press has just slightly overcompensated.

After spending the last four years trying to atone for its failures in the 2016 election, Washington media continues to show that their instincts are often about as solid as jello. That can be the only explanation why, for example, the cable networks and Sunday morning TV shows have administration officials—ones who openly and brazenly lie—on to feed some kind of narrative. 

Or arguably worse: they bring on the President’s children.

The political press is what it is because for decades it has chased the narrative of power, often pushed by the invisible hand of the horse race (who’s up, who’s down, etc) of politics. It serves no one any good. 

Anyway. Back to court packing. 

It’s now the topic du jour because the press keeps asking Biden about this hypothetical that, should he win and should the Democrats flip the Senate and keep the House, he will add more justices to the bench. 

And because Biden hasn’t responded, the press tries to sink its teeth into this supposed story.

That’s a whole lot of ifs here for the press to concern themselves about at this particular moment in time, when we’re in the midst of a pandemic. 

But here’s the thing: the framing of this “court packing” nonsense often misses some important points.

For starters, as Eric Boehlert points out:

This is all about context. The reason Democrats might be forced to expand the Court is because Republicans are trying to do what's never been done before in American history — confirm a lifetime appointment to the Supreme Court to a bitterly contested nominee from a wildly unpopular incumbent president while millions of Americans have already voted in the White House contest.

This also gets to the heart of Holder’s argument that the Republicans stole the Democrats’ seat (Garland), but also has shades of another two Supreme Court seats. Recall that the Supreme Court in a 5-4 decision along party lines handed George W. Bush the presidency in 2000, even though he lost the popular vote to Al Gore. Bush went on to get John Roberts and Samuel Alito confirmed. 

And now that Trump, who also lost the popular vote to Hillary Clinton, is on the precipice of confirming a third justice, after getting Neil Gorsuch and Brett Kavanaugh through, we have the backdrop.

It would also be good to look at what Republicans said on the eve of the 2016 election, when everyone thought Clinton would win and then nominate a Supreme Court justice.

From NPR, a week before the election:

For the first time, some Senate Republicans are saying that if Hillary Clinton is elected, the GOP should prevent anyone she nominates from being confirmed to fill the current court vacancy, or any future vacancy.

Judd Legum over at Popular Info argues that the muscle memory of “both sides-ism” journalism, where journalists report on both sides of a story to have the veneer of objectivity, has kicked in.

And, in recent days, journalists — with help from Republican operatives — have manufactured a controversy involving Biden. On the trail, Biden is repeatedly asked if he supports expanding the number of justices on the Supreme Court, a policy sometimes referred to as "court packing." 

In recent days, Biden has declined to explicitly state whether he would support expanding the court, saying he would "stay focused" on Republican efforts to install Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg after early voting has already begun. 

The media has largely accepted the Trump campaign's argument that Biden's refusal to definitely answer this question is a scandal.

The most important point, and sure, maybe I should have led with this, is that reality has a much different take on “court packing,” where it’s actually been the Republican party who’s filled the bench over the last decade. 

The story of the Republican Red Wall over the last decade, in one chart:

Indeed, McConnell says as much in 2019:

Boehlert again:

But the press often glosses over what the extreme, unprecedented Barrett nomination process represents. In that report on Harris 'dodging' the Court question, CBS News made no mention of the fact that Republicans refused to hold hearings for Garland, while now ramming through the Barrett confirmation. Instead, CBS simply noted, "Mr. Trump and Pence argue the president has a constitutional duty to name a new Supreme Court justice, especially if election-related disputes end up before the court."

In other words, in its report on expanding the court, CBS left out the reason — the context — for why Democrats might do it.

Of course, we’re talking about this because a) the media is [hello Agenda Setting Theory], but also b) because there’s a Supreme Court confirmation starting today, as Amy Coney Barrett faces the Senate Judiciary committee.

Even more fun: Amy Coney Barrett’s seat came up on the 7th Circuit February 18, 2015 when John Tinder stepped down. As McConnell had already put up the Red Wall in 2010, the seat sat empty for two years, with Senate Republicans stonewalling Obama’s pick Myra Selby. When Trump became president in 2017, the Republican senate quickly confirmed Barrett on Halloween 2017 (by a 55-43 count).

The effect of the media talking about “court packing” can be seen in a Google chart. This is the last five years. Notice the recent jump.

And just for shits and giggles, here’s “court packing” vs “hypocrisy” over the last 30 days. 

Also, a search of “court packing” into Google News yields 278,000 results. 

But perhaps the light should shine on the state courts, not just the Supreme Court or federal benches. In a 2020 paper, Duke law professor Marin Levy writes in a symposium article:

Missing in the debate over the positive question—that is, whether court packing has recently occurred—is that it has unquestionably happened in the past several years in state courts across the country. Specifically, in the last decade, there have been attempts by legislatures in at least ten states to alter the size of their courts of last resort, with two of those attempts succeeding. Moreover, it appears that attempts to alter the size of state supreme courts is on the rise, as the figures reported here represent an increase from the number of attempts in decades past.

All the coverage of court packing has changed, slightly, the will of the people. Notice the frame of this The Washington Post report, as it starts with the minority number before getting to what the majority wants:

The national poll finds 44 percent of registered voters say the U.S. Senate should hold hearings and vote on Barrett’s nomination, while 52 percent say filling this Supreme Court seat should be left to the winner of the presidential election and a Senate vote next year. Support for leaving the decision to the next president is down from 57 percent in a Post-ABC poll last month that asked whether the Senate should confirm Trump’s nominee, who had not yet been named.

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Neil Young, “Workin’ Man”

Some interesting links:
For platforms:

  • Google Supplying Police User Information Based On Keyword Searches – Report (Deadline)

  • ‘We’re at the crux of it’: How TikTok rival Triller is brashly pitching advertisers (Digiday)

  • Feds may target Google’s Chrome browser for breakup (Politico)

For media criticism:

  • An Arrest in Canada Casts a Shadow on a New York Times Star, and The Times (NYT)

  • CNN exclusive: Fauci says he was taken out of context in new Trump campaign ad touting coronavirus response (CNN)

For Murdoch-intrigue:

  • Which ‘Succession’ character is James Murdoch? (NYT)

For the future of media:

  • A new framework on valuing content (WEF)

For optimists:

  • Wall Street Bullish On Ad Rebound, Especially Digital (MediaPost)