The struggle over the confirmation of federal judges is usually the very definition of an insider Washington story. Editors and reporters can't get excited unless it's a Supreme Court pick, and a juicy Clarence Thomas "scandal." But the reality of what lesser federal judges can do struck home when a panel from the Ninth Circuit Court of Appeals declared the Pledge of Allegiance was unconstitutional. A semi-retired Nixon appointee and a Jimmy Carter appointee found that the words "under God" are not to be uttered in schools because one child was emotionally injured by having to listen to them, according to her politically atheist father.
Here, in this one decision, came a classic blast from the loony left, an exotic opinion that is not only out of the mainstream, it's almost beyond "extremist." But while the liberal news media are so quick to warn of extreme conservatism every time Justice Scalia clears his throat, a ruling from the bizarre left elicits but euphemism and sympathy.
Give CBS credit for telling it straight, noticing and repeating that the Ninth Circuit is known as the most liberal circuit court and the most overturned by the Supreme Court. But all ABC's Jackie Judd could manage to say of the Ninth Circuit is that it "has a reputation for unorthodox opinions."
USA Today concluded with the news flash that "Harvard Law School professor Laurence Tribe predicted that the conservative Supreme Court will reverse the relatively liberal Ninth Circuit Court." The court that proclaims the Pledge of Allegiance to be unconstitutional is "relatively liberal"? Relative to what? Never mind; I just don't want to know what USA Today considers to be a real liberal.
Elsewhere on television, the sympathy broke out. On PBS's one-sided dronefest "Washington Week in Review," New York Times reporter Linda Greenhouse argued that extremism in the defense of looniness is no vice: "I may be the only person in the country that kind of sees both sides of this...there was actually a lot of doctrinal merit on what the majority said." On the great issues of our time - like abortion - Greenhouse wouldn't be caught dead finding any "doctrinal merit" on the conservative side. But throwing the Pledge of Allegiance out the schoolhouse door and into the garbage can - well, let's consider the potential wisdom of that.
The liberal media party line was: good decision, bad politics. Newsweek's misnamed "Conventional Wisdom" box called the pledge-trashing judges "right and clueless at the same time." Later in the magazine, reporter Howard Fineman described the Carter appointee as "longtime liberal lion Stephen Reinhardt" and the atheist plaintiff, Michael Newdow, as a "rigorous rationalist." By contrast, the rest of America was to be disparaged: "As we approach the first Fourth of July since 9-11, this is how Americans are celebrating: by shooting off fireworks and shooting off their mouths."
Time's Nadya Labi was even more dogmatic in her support of the Ninth Circuit: "For a hysterical moment, [the Nixon appointee] Alfred Goodwin replaced Osama bin Laden as the most reviled man in America." But she suggested that "lost amidst all the flag-waving and God-avowing furor was the fact that Goodwin may have had a point." After listing the opinions of liberal law professors who pronounced the decision "technically correct" and "quite persuasive," Labi declared the poor judge was "a victim of bad timing," as if there ever is a good time to declare the Pledge is unconstitutional.
Some tried to turn Newdow's crusade into the real flag-waving American approach. Fineman argued the Constitution gives Newdow "the freedom to try to banish any trace of the 'Creator' from official discourse. It's a concept that makes no sense to bin Laden or Saddam or, indeed, to any theocrat or despot," but he has a "right to complain." Well, that's a nice place to locate the vast majority of Americans: somewhere between Osama and Saddam.
More balanced media outlets were looking into how honest about his daughter Newdow really was. While he claimed in his lawsuit he was trying to protect his daughter from emotional "injury" from being forced to sit and listen while her teachers led other students in the pledge, Newdow admitted to Fox that she voluntarily says the pledge along with her classmates. His explanation is priceless: "This is more about me than her. I'd like to keep her out of this."
Democrats fell all over each other in demonstrating support of the Pledge, because there's another story they, along with their allies in the press, don't want to see emerge. The Bush judges that Patrick Leahy and Co. are sitting on just might be the difference between common sense and the loony "lions" of liberalism, and if this becomes a hot-button issue come November, it's curtains for the left.