Patterico's Pontifications


David Savage Propagandizes Against Brett Kavanaugh

Filed under: Dog Trainer,Judiciary — Patterico @ 2:54 pm

i just ran across this David Savage article about Brett Kavanaugh from last Tuesday. As you no doubt have already guessed, it is propaganda through and through, beginning with the headline:

Starr Aide’s Nomination Divisive

You know the drill by now: in the world of Big Media, the word “divisive” is saved only for those people or issues that are divisive and right-leaning. Divisive people or issues that are left-leaning are rarely if ever described as “divisive.” Rather, they are falsely described as more centrist than they actually are. Hillary Clinton is one prominent example.

This characterization plays right in to the hands of Democrats like Chuckie Schumer. From the article:

In hearings after Kavanaugh was first nominated, Democrats and liberal activists complained that his record was one of a political warrior, not of a seasoned judge. “If President Bush truly wanted to unite us, not divide us, this would be the last nomination he would send to the Senate,” said Sen. Charles E. Schumer (D-N.Y.).

So: the White House says Kavanaugh is qualified. Schumer says Kavanaugh is divisive. And the headline in the L.A. Times? “Starr Aide’s Nomination Divisive.” Does it sound like the editors of The Times are siding with Democrats? You tell me.

The Savage article falsely claims that Kavanaugh’s views on executive power are cynically dependent upon politics:

As a young lawyer in the mid-1990s, Brett M. Kavanaugh spent several years working on Kenneth W. Starr’s investigation of President Clinton.

In that role, he argued that the White House must open itself and its records — including notes taken by Clinton’s attorneys — for examination by the independent counsel and his deputies. But as an advisor to President Bush, Kavanaugh has taken the opposite view, zealously defending presidential prerogatives.

I am aware of no contradiction between Kavanaugh’s former and current views. Working for Starr, he argued that the president must disclose information during a federal criminal investigation before a grand jury. Working for Bush, he has argued that the president may withhold confidential information in the context of civil suits.

There is no contradiction there. That is the law. The courts have made this clear. And David Savage persists in misunderstanding this.

The information Kavanaugh sought to keep confidential while working for Bush was information demanded in the context of civil suits:

As a deputy White House counsel, [Kavanaugh] argued that the president and the White House should be shielded from outside inquiries, such as the ultimately unsuccessful lawsuits from environmentalists and congressional auditors who wanted to know whether oil industry officials had met with Vice President Dick Cheney to draft the administration’s energy policy.

These lawsuits were civil in nature, and they were (as Savage notes in passing) unsuccessful. The Supreme Court slapped down the environmentalists who wanted the names of oil industry officials. The vote was 7-2.

Meanwhile, when Starr sought documents from Clinton, it was in the context of a criminal investigation. And, for that very reason, he won. As the court said in the Eighth Circuit decision ruling for Starr:

Even if we were to conclude that the governmental attorney-client privilege ordinarily applies in civil litigation pitting the federal government against private parties, a question that we need not and do not decide, we believe the criminal context of the instant case, in which an entity of the federal government seeks to withhold information from a federal criminal investigation, presents a rather different issue.

The key distinction is that executive privilege (and government attorney-client privileges) often must bend during a criminal investigation.

Ironically, Savage has misrepresented that Eighth Circuit decision before. In July of last year, Savage wrote an article ridiculing the White House’s invocation of government attorney-client privilege to withhold memos written by Supreme Court candidate John Roberts. Savage pointed to the Eighth Circuit decision discussed above, in which Starr prevailed in his argument that any such privilege did not pertain to the documents sought in Starr’s investigation — the same criminal investigation in which Kavanaugh participated. Savage argued last July that this case supported the Democrats’ claim that Roberts’ memos should have been disclosed. But Savage failed to tell readers the key distinction made by the Eighth Circuit decision — namely, that Starr was pursuing a criminal investigation before a grand jury.

I slammed Savage last July for failing to explain this distinction to his readers. Eugene Volokh joined in.

Now he’s doing it again.

What is interesting is that, in both the Supreme Court decision regarding secrecy of the oil industry officials in the civil context, and in the Eighth Circuit decision on disclosure of documents in the criminal context, Kavanaugh was right. He won both when he was working for Starr and when he was working for Bush.

What’s the problem, David Savage?

16 Responses to “David Savage Propagandizes Against Brett Kavanaugh”

  1. well, that’s the Times at its cheesiest best. To omit the difference between criminal and civil, no small detail there. Yet it shades his whole thesis.

    I can only concur that the Times’ headline is true in a different sense: “Starr Aide’s Nomination Divisive.” They’re not saying Starr Aide’s career is divisive. The Bush nomination is dividing libs and conservatives (and journalists, the MSM).

    The divisive term is used quite a bit though. Rush Limbaugh gets stuck with it, which is interesting. I would call him representative more than divisive. Representative of half the country’s political leanings.

    Vermont Neighbor (a9ae2c)

  2. I always thought that ‘politically correct’ was the same as kiss a**, now i know i was wrong, it’s really another word for stupid.
    I also though being biased meant to favor one side over another. Now the left has shown the real meaning of Biased. It’s open hate leading to insanity. There is not one left wing anti-american democrat (that’s all of them) in this country that i would trust in an outhouse with a muzzle on. They’d find a way to suck it up their butt.
    The Slick Willie administration really succeeded in the dumbing down of America. They lied so much, and the left defended them so much, that everyone on the left now lies and thinks it’s normal. No sanity left over there. Hate really does turn to insanity and does it really fast.

    Scrapiron (a90377)

  3. And David Savage persists in misunderstanding this.

    I don’t think he misunderstands at all. He and his editors want Dog Trainer readers to misunderstand.

    Stu707 (18fdc8)

  4. Patterico, great post about the point of view within the headline.

    I would take the argument a step further.
    I’ve noticed that when Democrats express “concerns” about a Republican nominee, the Times will write, as you pointed out, that the nominee is “divisive,” or even “controversial.”

    But when the GOP expresses concerns about a Democrat nominee, the headline ALWAYS reads, “GOP ATTACKS Judge Jones,'” or “Judge Jones endures partisan ATTACKS by GOP.”

    On Spring Street, a GOP nominee is always the root of the problem, while the Democrat opposition merely serves to shine light on the nominee’s problematic record. On the other hand, the Times believes a Democrat nominee is never the problem—his GOP adversaries are the problem.

    It’s the same leftist thinking which poisons their ability to fairly analyze the Israel-Arab conflict.

    Desert Rat (d8da01)

  5. Here are some examples of common journalese listed by a copy editor’s discussion group, deciphered:

    ACTIVIST: Vocal busybody whom the reporter likes.

    ARCHCONSERVATIVE, ULTRARIGHTIST: Since the world apparently holds no archliberals or ultraleftists, these must be people who the reporter thinks are very bad indeed.

    FRAGILE ECOSYSTEM: Since the term “robust ecosystem” is unknown, this means that the reporter adamantly opposes the development of this area and probably wants a substantial amount of money spent to keep it just the way it is.

    GADFLY: Vocal busybody whom the reporter finds kind of funny.

    IDEOLOGUE: Vocal busybody whom the reporter dislikes.

    MAINSTREAM OPINION: The reporter’s opinion.

    OF COURSE: Used to signal that the reporter is kind of irritated that this obvious piece of background information has to be inserted for the benefit of the readers, who are all cretins, especially by comparison with the reporter.

    QUIPPED: Since no quotation attributed with this verb has ever been known to be even faintly amusing, this is used for those statements that cracked everyone up during hour 7 of the City Council meeting, but you really had to be there.

    REVEALING GLIMPSE: In a nut graf, this phrase signals that the story will be a tiresome, especially long wonkfest that will in no significant way advance anyone’s understanding of the issue, but that required a huge amount of work, so here’s my story, where’s my contest award?

    TAXPAYERS’ MONEY: Invoked only when writing about government programs of which the reporter disapproves.

    H/T – Common Sense Journalism

    Bradley J. Fikes (e619fc)

  6. Those are great descriptions. Just in time for the Sunday paper.
    (Quipped = funny)

    Vermont Neighbor (a9ae2c)

  7. For someone like Savage, who’s been covering the Court for 20 years and writes for the ABA Journal, I suppose he feels entitled to his own interpretation of the law. Of course, I have little doubt that feeling of entitlement started in his rookie year.

    Speaking truth to power often has very little to do with actually speaking the truth.

    Dusty (af3a10)

  8. Does Savage understand the difference between case law and statutes?

    AllenS (e88819)

  9. >>>The information Kavanaugh sought to keep confidential while working for Bush was information demanded in the context of civil suits:

    You’re asking Liberals to set aside their Lefty platitudes for thoughtful nuance? Good luck.

    carlos (98df3a)

  10. […] Patterico had a good post yesterday, rebutting criticism of Brett Kavanaugh. In particular, Patterico goers after an anti-Kavanaugh op/ed in the Los Angeles Times by David Savage. […]

    Confirm Them » The Right is “Divisive” But the Left is “Progressive” (b78190)

  11. Might have been the same headline writer who topped the LAT article a year ago on another (divisive??) Bush nominee, Judge Priscilla Owen:

    Judge Seen as Conservative, Fair

    Appeals court nominee Priscilla R. Owen is thorough and careful, colleagues say. Her legal opinions are viewed as favoring business

    By David Savage.

    [And I praised that article, as you well know from reading my 2005 Year in Review. Of course, Savage completely and utterly botched the analysis of one case to make Owen seem more unfairly protective of business than she really was. And he and the Reader’s Rep refused to correct the matter. The Reader’s Rep explained that she disagreed with me that Savage got it wrong (I guarantee you I was right and she was wrong, and if you care to dispute me on this, then carry it to the end and don’t weasel out on the apology when I prove to be right), and also, she explained, it was an obscure point anyway, so no correction necessary. She did not appear to care that 1) said obscure point was important enough to include in the first place, and 2) obscurity is no excuse for inaccuracy, and 3) the obscure point was a significant part of the argument that Owen was unreasonably hostile to business. Love this paper! — P]

    steve (c81f68)

  12. Savage was never accused of “propagandizing” for Priscilla Owen. He interviewed four people and all four backed Owen. Not a Texan with a single dissenting view, darkened: “Judge Seen as Conservative, Fair.”

    Even if the Owen article ‘botched’ a rape case dissent – even as the Kavanaugh piece ‘botched’ executive privilege – why is the former still praiseworthy and the other, “propaganda through and through, beginning with the headline: ‘Starr Aides Nomination Divisive’?”

    I’m guessing the flaw here isn’t Savage’s case summaries.

    [Owen was a solid candidate. Kavanaugh would be as well. Savage botched case summaries in both articles, but at least he gave Owen a fair shake. Not so with Kavanaugh.

    I don’t blindly support all Bush nominees. See my Miers coverage. — P]

    steve (c81f68)

  13. This quote from the Savage article is false, “As a young lawyer in the mid-1990s, Brett M. Kavanaugh spent several years working on Kenneth W. Starr’s investigation of President Clinton.” Mr. Kavanaugh did not spend several years investigating President Clinton but he did spend several yesrs investigating the death of Deputy White House Counsel Vincent W. Foster. Kavanaugh wrote the Office of Independent Counsel Report on the Death of Vincent Foster.

    It is interesting that Kavanaugh’s critics and supporters DO NOT want to mention or discuss Kavanaugh’s report on Vincent Foster and the historic court ordered attachment to that report.

    Turley (f37cce)

  14. Wow. I had no idea the “Vince Foster was murdered” crowd had survived into the age of blogs.

    Crank (3fed2a)

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