NewsBusters' associate editor Noel Sheppard spent part of his Sunday discussing with CNN's Don Lemon the media's coverage of last week's ObamaCare ruling by the Supreme Court.
Although the encounter was quite friendly, the two clearly didn't see eye to eye on how the press has handled this controversial matter in recent months (video follows with CNN transcript and commentary):
DON LEMON, ANCHOR: Oh, man. What a week. What a week. The individual mandate. The individual mandate. The power to tax. The commerce clause. Thanks to the Supreme Court's decision on health care reform, we've all got an education in the last few days on both the Constitution and, of course, D.C. politics.
Not just D.C. politics, national politics. I'm going to talk about it with Noel Sheppard, the associate editor of newsbusters.org.
There he is. So, Noel, welcome back. Newsbusters describes its mission here as exposing and combating liberal media bias. So, Noel, again, welcome back to our show, ever since Thursday.
NOEL SHEPPARD, ASSOCIATE EDITOR, NEWSBUSTERS.ORG: Thank you for having me.
LEMON: The talking point has been that the health care law is actually a huge tax. But before this thing passed, the focus was all about the mandate, the big government angle, the tax angle completely overshadowed. So who missed the boat on this one?
SHEPPARD: Well, actually, you know, as a media analyst, it's been really enjoyable the past three months, watching all of you folks on this incredible roller coaster. I mean, you know, three months ago, before the oral arguments, you had people in the media, saying that this was clearly going to be upheld; Anthony Kennedy was going to be the swing vote.
You had your own CNN legal analyst, Jeffrey Toobin, about two days or three days before oral arguments, saying that this was going to be an 8-1 vote with even Alito and Roberts and Scalia voting in favor of upholding the mandate.
LEMON: All right, listen, we have two different memories of what happened. Every single network, just about everyone except for one person, who's not on this network, who I saw, said that the individual mandate would be struck down, Joel. I don't remember Jeffrey Toobin coming on CNN -- and maybe I'm wrong, I didn't see all of it.
I do not remember Jeffrey Toobin or anyone else coming on CNN, saying that the individual mandate will be upheld. Most people were startled and surprised that it actually was.
Not exactly. As NewsBusters reported, Toobin said the following on March 23's Situation Room:
WOLF BLITZER: And very quickly, because we're out of time Jeff, this is a case where you have four conservative justices, four liberal justices, one swing justice, Anthony Kennedy. Are you anticipating a five-four decision with Kennedy making the decisive vote?
JEFFREY TOOBIN: Well that's certainly a possibility, and certainly the four Democratic appointees will vote to uphold the law. I actually think that Chief Justice Roberts and perhaps even Justice Scalia and Justice Alito might join Justice Kennedy in upholding the law. In striking this law down, it would really be a big change in Constitutional law, and I'm not sure this court is ready to do it.
Score one for Sheppard. Let's continue:
SHEPPARD: No, Don, actually you're confusing the pre-oral arguments phase with the post-oral arguments. Prior to the oral arguments in March, the media were pretty much unanimous that this was likely going to be upheld and that Anthony Kennedy was going to be the swing vote --
LEMON: OK, I -- no, I get you, I get you. I understand that. That's -- I mean --
SHEPPARD: Then it totally changed.
LEMON: That's ancient history now after that. I mean, let's not get (inaudible). Let's not get too in the weeds.
SHEPPARD: Well, but it's been --
LEMON: Let's keep it to this past week. I understand what you're saying.
LEMON: But you know, as time moves on and people learn things, they change what they think about things.
Had it not been for the way the oral arguments went, people would think different. But the oral arguments did happen; once they happened, most people said it was going to be struck down. So I don't understand your point here.
SHEPPARD: Right. But the importance of that, the importance of that is how the media responded on Thursday. If this had occurred three months ago, the media response on Thursday would have been much more of a disappointment, because the expectation prior to March was that it wasn't going to be struck down.
So after March, when we all got this vision that it was going to be struck down, at that point in time, Thursday ended up being, you know, a jubilation. The media were enthralled, almost orgasmic.
Before we get to Lemon's response, the point Sheppard was making was that the country's perception of this case has largely been driven by the media and has therefore been on quite a rollercoaster ride.
In the months preceding oral arguments, the liberal press almost universally agreed that Justice Kennedy was going to side with the four left-leaning jurists on the Court to uphold ObamaCare.
After the oral arguments at the end of March, when Kennedy questioned the White House solicitor general so strongly about the individual mandate, the media flip-flopped taking a far more pessimistic view.
This included Toobin who the day of the oral arguments said on CNN Newsroom:
TOOBIN: This was a train wreck for the Obama administration.
ASHLEIGH BANFIELD: [Whispers] Wow.
TOOBIN: This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong. Justice Kennedy, the swing vote, was enormously skeptical. Justice Alito, Justice Scalia, were constantly skeptical. Justice Thomas didn't say anything but we know his position on the issue. The only conservative justice who looked like he might uphold the law was chief Justice Roberts who asked hard questions of both sides. All four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were- they, they did not meet with their success with their colleagues. Most surprising to me perhaps, Donald Verrilli, the solicitor general, did a simply awful job defending the law. He was nervous. He was not well spoken. The argument got off to a very bad start for the administration. And it was really the liberal justices who is carried the argument much more than the lawyer.
This frankly became the media mantra for the next three months with prominent press members regularly eviscerating the Court's conservative members as extremist, partisan, Republican shills with absolutely no concern for the law or the Constitution.
As such, when the ruling came out Thursday, since the media were prepared for a completely different outcome, they quickly throttled into extreme jubilation without regard for the true meaning of the decision.
Given the declaration by the Court that the individual mandate penalty can only be considered constitutional as a tax and is not protected by the commerce clause, as well as the striking down of the crucial Medicaid expansion, this was by no means a huge victory for the White House.
Yes, it was far better than if the Court had completely overturned the bill, but if this ruling had been issued when the media were expecting a total validation and uphold under the commerce clause, the celebration would have been far more subdued with likely great concern expressed about the tax declaration as well as the axing of the Medicaid expansion.
Let's understand that likely 50 percent of the proposed new insureds under the bill were supposed to come from the proposal to expand Medicaid income limits.
If one of the real purposes of healthcare reform was to increase the number of America's poor receiving free or inexpensive coverage, the Court just for all intents and purposes struck that down.
But jubilant media weren't concerned about the welfare of such people on Thursday. Getting President Obama reelected was far more important.
Lemon didn't agree:
LEMON: Oh, no, no, no, no, it was not a jubilation. I watched it and I saw some anchors on conservative networks, I thought they were going to cry. It was not jubilation. I watched CNN. And CNN, there were no happy people on CNN. So don't say that people said, oh, my gosh, what happened, who died? No, there was no jubilation. Come on. You're looking for things.
SHEPPARD: There was no jubilation? The --
LEMON: Not on this network. I don't know, maybe on other liberal networks, yes, maybe you're correct. Not on this network and certainly not on more conservative networks.
SHEPPARD: But Don, obviously I don't just analyze CNN. I love you and I love CNN, but there are a lot of other networks that I have to watch and the evening news broadcasts on Thursday, the broadcast -- ABC, CBS, NBC evening broadcasts were all jubilant. They were talking about almost -- almost making Roberts a hero, where the previous day they were talking --
LEMON: No, OK, so listen. Here's the thing, Noel. When you -- I heard some of that analysis. And when someone, on an evening newscast, leads into a story, saying that Justice Roberts is the man of the hour, it doesn't mean that they agree with what Justice Roberts did, it means that that's all people are talking about on the Left and on the Right, is Justice Roberts.
So if you're talking about him, whether it's in a good way or a bad way, it means that he's the man of the hour. It doesn't mean that you necessarily agree with what he's doing. That's not jubilation, that's fact.
SHEPPARD: No, because the previous day and for the previous three months, they were talking about how he was a conservative shill. So all of a sudden because he came out with a ruling which the Left liberal media liked, he's suddenly a hero. But he was a goat for the previous three months and he's been a goat since the Citizens United ruling.
So obviously what it means is for a Supreme Court justice or, really, anybody in America today, you're going to be a hero if you do something that the liberal media likes, but you're a goat if they don't. And it can flip-flop in 24 hours.
LEMON: Well, Noel, I think that's your assessment of that. I think that even if someone is talking about it and saying bad things, you can still be the man of the hour. It means that your name is being brought up a lot and that you're being talked about.
I have not heard anyone say, anyone, on a liberal or a conservative network, that Justice Roberts is a hero. I mean, they may say, yes, Justice Roberts. I have not heard that. And if you've heard it, maybe it's just your interpretation.
SHEPPARD: Oh, we've got to broaden your horizons, Don, we've got to get you watching more than just CNN, my friend.
As NewsBusters reported hours after the Supreme Court announcement, MSNBC's Chris Matthews opened his Hardball program:
CHRIS MATTHEWS: I'm Chris Matthews in Washington and let me start with one of the great days in this country's history. Today, the United States Supreme Court, led by the chief justice himself, decided that President Barack Obama's health care act squares with the American Constitution. All the drum beating, all the horrors floated up from the right-wing fever swamps are, as of today, simply the hate vapors of the perennial rejectionists to progress, the rear guard funded by the Koch brothers and the U.S. Chamber of Commerce. Today's hero, Chief Justice John Roberts, who walked to the forefront of history and who said yes to progress and no to the role prescribed for him by the right.
A bit before this, on MSNBC's sister station, NBC Nightly News anchor Brian Williams declared that Roberts sided with liberals on the Court in upholding the unpopular law in order "to be on the side of history." Legal analyst Savannah Guthrie praised Roberts for having the wisdom of King Solomon: "I guess you'd call it a Solomonic decision."
A few hours later, the broadcast evening news programs did indeed gush and fawn:
Chief Justice John Roberts may have angered conservatives with his decisive vote in favor of ObamaCare today, but he was, in CBS anchor Scott Pelley’s words, the “man of the hour” on all three network evening newscasts Thursday night.
ABC’s Terry Moran complimented Roberts’ lurch to the left, saying it “did give heart to many Court watchers,” who were worried the Court “was at risk of becoming just another hyper-partisan place... By joining the liberals, Chief Justice Roberts seemed to have stopped that.”
CBS’s Wyatt Andrews also had warm words for Roberts: “Yesterday, he was widely seen as another partisan on the court. Today, in the most dramatic case of John Roberts’ career, he changes, he breaks the mold.” That’s when Pelley chimed in: “The man of the hour.”
On NBC, anchor Brian Williams approvingly cited support Roberts garnered from a staunchly liberal law professor: “Today, Lawrence Tribe, the Harvard professor, who can say he taught Barack Obama and John Roberts at Harvard Law School said that with this decision, crossing over to join the liberals, Roberts might have saved the institution.”
On Lemon's own network, CNN Newsroom anchor Brooke Baldwin asked a Republican Senator Thursday if he was a "sore loser" for continuing to fight ObamaCare.
Speaking of CNN, Lemon's colleague Howard Kurtz spoke of the media's pathetic response to the ruling on Reliable Sources early Sunday morning:
HOWARD KURTZ: But what do you make of not just some liberal commentators but, you know, the front page of "The New York Times," other mainstream press accounts giving John Roberts a halo, this guy who had been portrayed as a conservative ideologue -- boy, he had the wisdom and the stature and the independence to rule with the court's liberal wing on this.
As such, it's quite clear the media's reaction to Thursday's ruling was quite jubilant just as Sheppard said and NewsBusters has reported.
— Noel Sheppard (@NoelSheppard) June 9, 2012