“Somebody somewhere is looking at sexually suggestive photos of your teenage child and you might be just as surprised to learn where these pervy grownups find the images. They’re posted on a site that’s part of one of the most respected publishing empires on Earth. We’re talking about a site called Reddit.” Cooper noted that the site has grown big enough to become its own division, side by side with Conde Nast, but still the same corporate parent.

Cooper called the posting of these photos creepy, and was curious why nothing was being done to protect the privacy of the subjects in the images.

“Reddit is uninterested in stopping them, even though it boasts on the corporate blog the good it is doing for the world,” he said.

Cooper asked CNN Senior Legal Analyst Jeffrey Toobin if the “jailbait” section of Reddit was legal. “I didn’t see anything illegal,” Toobin said. “Is it in good taste? Is it appropriate for this or any company to be involved? That’s a very different question…but it could result in a civil lawsuit, and obviously was not in good taste.”

Sunny Hostin, legal contributor on truTV, disagreed with Toobin’s legal assessment. “I think it’s borderline kiddie porn. It’s very close to the line and the bottom line is that the First Amendment doesn’t protect child porn. So, they are really straddling that line. Also, even if they aren’t, don’t we want them to be good corporate citizens? What happened to decency? What happened to corporations doing the right thing? Why would you have a website that sexualizes young girls? I looked at a lot of the pictures and i thought they were very, very close to the child porn line.”

“Something has to be done about it,” Hostin added.

The segment created an uproar among many users of the Reddit community.

Nightbane wrote, “Anderson Cooper has just tainted us all.”

“Anderson Cooper discovers the internet is not all roses…” NinjaDiscoJesus lamented.

Khiva thought Cooper had a point. “Jailbait has been a creepy embarrassment for some time, though it’s an open question as to what (if anything) should be done about it. At a certain point in a site’s growth it’s going to have to choose between chaotic, free-form openness (a la 4chan) and all of the detritus that attracts (a la 4chan) or shed its nastier excesses for mainstream acceptability.”

Watch the segment below, courtesy of CNN:

Wrong first impressions: “Both are unsympathetic defendants, both have been targets of the kind of rush to judgment so common in sensational cases, and both, surprisingly, are going to escape severe punishment, says a USA Today editorial. We judge people wrong sometimes. “Public perceptions should be irrelevant. It remains better to let guilty people go free than to convict one person who is innocent.”

It’s not the public’s fault: “The most important part of criminal law,” says Jeffrey Toobin at CNN, is “the concept of prosecutorial discretion, and it is at the heart of our justice system — as the pursuers of Casey Anthony and Dominique Strauss-Kahn have discovered.” In both cases, “mistakes by prosecutors — overcharging in the Anthony case, rushing to judgment in Strauss-Kahn — were apparent even at the time. Prosecutorial misjudgments can deprive the victims of crime, and society at large, of the punishment and incarceration of those who broke the law.”

Proof the legal system works:  “In high-profile trials as well as in trials the public never hears about – and that’s the majority of them – the jury’s job is never to prejudge The court of public opinion, in contrast, almost always prejudges,” says Jac Wilder VerSteeg in The Palm Beach Post. “So verdicts will shock from time to time. Agree with these outcomes or not, it is a good thing that our legal system still can overrule the court of public opinion.” Paul Campos at The New Republic agrees: “The unsatisfactory nature of these outcomes is the price we are supposed to be willing to pay to avoid travesties.”

It’s our narcissism at work: Reality TV and social media are fueled by “people who have an inflated sense of their own importance.” Now the news is following: Both Strauss-Kahn and Anthony have been described this way. “We all know and are drawn to narcissists — at least at first, until their dark side emerges. And, psychologists maintain, deep within we all have a healthy dose of narcissism in our blood, reports the Houston Chronicle.

With Lawrence O’Donnell away on jury duty, The Nation‘s Chris Hayes took the helm, opening the story by calling Breitbart a “character assassin” before relaying the necessary facts of the story. After enough of a crash course for the rest of the segment to make sense, Hayes showed a clip of Breitbart on CNN, immediately followed by Jeffrey Toobin‘s comments on the network that Breitbart’s involvement was simply “too bad.” He then turned to Huffington Post reporter Alex Wagner and lamented that watching Breitbart on CNN made him “want to give up” because the story was “so preposterous.” “This person who has been so discredited so many times,” he said of Breitbart, chastising CNN for having “such a serial manipulator of the media” on the air. Wagner agreed, though then tried to veer the conversation back to Rep. Weiner, who by this point feels like a minor character in the scandal after all the Breitbart talk. While Wagner addresses the situation, the chyron below her reads “Not so Breit,” with a picture of– you guessed it– Andrew Breitbart. Wagner does mention this evening’s “informal press gaggle” and Rep. Weiner’s defensive response to any questions about the matter, but Hayes returns to the question that really matters: is Andrew Breitbart evil, or unforgivably evil?

Many news sources (including Mediaite) upon the story breaking over at Big Government chose to give their readers a caveat about the torrid history of the site and its proprietor. Affiliating a Congressman with lewd photos sent to a young woman– no matter what his role in the transfer of that photo may be– is a weighty charge, and when only one website has covered it, there is reason for pause. But it has been three days, that young woman has spoken, the technology seems to give no direction in which to judge, Rep. Weiner has been less than cooperative with the press on the matter, to say the least, and most of the mainstream media has returned home from the holiday weekend and dug up far more than the slim pickings of evidence available Saturday morning. Four days later, the story is far bigger than just Andrew Breitbart.

That is not to say that there is no room in which to provide the audience with a disclaimer that the man who broke the story isn’t exactly the most trusted voice in American media (but, then again, polls show nobody else is either, unless “Don’t Know” is an accredited journalist. In which case, someone get that man a Pulitzer!). Certainly MSNBC knows their audience, and it’s the type of audience that would look out the window if Andrew Breitbart said the sky was blue– precisely the sort of audience that would gain very much from knowing that, after Weiner’s fiasco of a press conference, CNN’s Dana Bash has risen to the top of the media effort to get to the bottom of this strange, strange story, and that many sources as averse to Breitbart as Hayes appears to be are having second thoughts on the veracity of the original report.

Toobin’s reaction to Breitbart’s appearance on CNN:

“What Andrew Breitbart was insinuating about [Weiner] with young girls and stuff is outrageous. And frankly, it’s too bad that he got to say that stuff on CNN. Look, this is a light-hearted story. This is a silly little thing that happened, it’s not a big deal.”

Toobin concluded that “on the Internet, stuff happens” and the lesson here is you can’t always trust Twitter. Randi Kaye admirably played it down the middle with both Breitbart and Toobin, and suggested the story isn’t being dismissed as quickly as Toobin might like because for some reason Weiner hired an attorney rather than report the incident to federal authorities. Toobin responded that the famous expression “don’t make a federal case out of it” is the appropriate tone here, “and to turn it into something more than a mild prank – hack – whatever you want to call it, seems really excessive.”

Breitbart and many of his fellow conservatives allege a liberal media bias is often in full display by the different treatment Democratic and Republican politicians receive by the press when they are entangled in any alleged wrongdoing. Toobin responding, “I just don’t think it’s a big deal,” certainly seems to fit Breitbart’s expectations; however, the fact that Kaye and CNN are devoting time to investigating the story at least demonstrates an honest attempt to get to the truth, no matter Weiner’s political affiliation.

Watch the clip from CNN below:

Stage 2: Laughter – as interviewers enjoy Trump being provocative, but doubt he’ll seriously pursue a campaign.

Stage 3: Disbelief – as interviewers get angry, throw their hands up in frustration and nearly succumb to Trump’s limitless bravado.

Stage 4: Combative – as interviewers decide to fight back and stand toe-to-toe with the Trumpster, despite his repeated utterance of “excuse me” to demonstrate his disapproval of being challenged.

Flip through the pictures below to see whether you agree with how far along each of these interviewers have come, and stay tuned to watch future Trump interviews to see if these interviewers progress any further.

Unlike, say, his private conversation with Charles Krauthammer, Trump called up In the Arena ready for battle– given Spitzer’s history in New York real estate, this is not the first time the pair engage. Trump did not take Spitzer’s orders to “fire away” lightly: “One or two people called me up and said it was a very unfair piece,” Trump noted of Spitzer’s initial investigative segment, immediately articulating his disappointment with Spitzer. “I was a fan of yours,” he lamented, “and I was a little bit surprised to see you do a negative piece.” Noting the disappointment, Spitzer replied that he was still “a fan” and that “I love the bravado,” and ceded that, since Trump’s is a private company, much of his work was speculative.

Trump chipped away from there. “You don’t know where I come from or what I own,” he noted, and corrected his initial claims that his net worth had been valued by several banks to be billions of dollars lower that what Trump had boasted. Rather than Deutsche and North Folk Banks claiming Trump had “only” $750 million in net worth, as Spitzer claimed, Trump argued that this was a threshhold worth he had to meet in order to arrive at loans, such that the valuations were made with no real intent to chronicle his full worth. “This is many years ago… you had to have a net worth of over a certain amount in order to do a loan,” he explained. “Once the loan amount was hit, it didn’t make any difference what it was.”

Spitzer was unconvinced, but by the second and third times he tried to get Trump to admit the banks had valued him at significantly less than he boasted, the answers out of Trump were new boasts, like “I have built a great company” and “you’re wasting a lot of time on your show” with something that “you’ll find out, very likely soon.” Exasperated, Spitzer got straight to the point: “what is your net worth?” Trump wouldn’t say, but claimed it was “substantially in excess” of Forbes‘ estimate: $2.7 billion.

Spitzer’s confrontation with Trump via CNN below:

Spitzer, no stranger to taking on New York’s more affluent residents, sat down with legal analyst Jeffrey Toobin on his show In the Arena today to make some sense of Trump’s financial situation as described by Trump. Toobin did not find any particular legal issues, but many political ones in “puffing up his net worth”: “the issue is, ‘is he telling the truth about how much money he actually has?’ and this certainly seems like a problematic valuation.”

The numbers Spitzer managed to dig up were damning: he valued his golf course complex at $360 million– about $330 more than it was worth three years prior– based on real estate that did not exist on the property, nor was in the process of being created. In fact, the number came from a 75-mansion complex that, currently, only existed in the form of six of those proposed mansions, three of which were sold. His million dollar speaking fees? Actually something more like $400,000, though Trump counted $600,000 in advertising as part of the package. As Spitzer put it, “still not a bad paycheck, but not a million bucks.”

And then there is Trump’s net worth which, according to Trump, appears to be somewhere around $3.5 billion dollars. In attempting to acquire loans, two banks did their own valuations and found wildly disparate numbers– North Folk Bank valuing him at $1.2 billion, and Deutsche Bank putting that number somewhere around $788 million. The accounting in the rest of Trump world showed a similar pattern.

But more damning than his numbers are Trump’s own words about how he arrived at them. Citing a legal deposition where he was asked whether he had exaggerated his net worth, Trump says, “I’m no different than a politician running for office… you don’t want to say negative things,” later adding, “I think everyone does.”

One of Trump’s biggest selling points to the cynical voting populace that will define the 2012 elections is that he’s “not a politician,” but businessman. Listening to himself say he is no different than politicians, in any capacity, is a self-induced wound that could bleed all the way to the closing of 2011.

The segment via CNN below:

With the midterm elections around the corner, pundits are hard at work to predict the Democrats’ future. Jeffrey Toobin, the lone non-comedian panelist of the bunch, guessed, based on recent polls, that the Democrats can hold onto the Senate but will likely lose the House. But quickly the conversation moved to specific races, particularly those involving Tea Party candidates, leading Alec Baldwin to chime in for the first time, holding a paper mustache to his face and proclaiming that the problem in America is “your damn rent is too high.”

They discussed New York gubernatorial candidate Carl Paladino at some length – Baldwin referred to him as “an SNL skit.” He said that some of this year’s candidates are sending the message that “ignorance is the answer to  everything.” Andy Borowitz compared it to turning Laverne & Shirley into a show entirely about Lenny and Squiggy. The Tea Party uprising, the panel said, came out of frustration that the country’s problems aren’t being solved fast enough. But they stressed that for the stimulus to work, Americans will have to execute more patience and restraint.

Baldwin acknowledged that the president has suffered from vicious personal attacks throughout his tenure and been forced to “zen out a bit.” Toobin said that this is part of Obama’s “constructed personality,” a strategy to avoid being perceived as an “angry person.” It could pay off for the Democrats this season. (They also praised former President Bill Clinton for stumping for Democrat candidates this season.) But the liberal crowd didn’t seem convinced that Obama could restore his image. One audience member flat out asked if a majority of Americans are “idiots.” That’s the note on which Borowitz chose to end the evening.

What They Said
“Let me ask a substantive question: When are the elections?”
- Andy Borowitz waited until midway through the discussion to ask the most basic question

“People are pissed, understandably, and Obama hasn’t done anything about it.”
- Jeffrey Toobin says that the economy remains the biggest issue around the midterms

“’Don’t ask, don’t tell’ is so absurd. They now have convicted felons who can serve yet gays aren’t allowed.”
– Judy Gold thinks it’s time for Obama to deliver on his promise to do away with the law

“It’s a threat to our freedom. We have to not stop fighting them.”
– Alec Baldwin sees the Tea Party as a growing problem that needs to be addressed

“I think his level of mental health is shockingly high for a president of the United States.”
- Andy Borowitz gives Obama credit for how he’s managed so far

What We Thought

• Borowitz, as usual, set the tone for the night with hilarious stand-up comedy about current events. More than just a warm-up comedian, Borowitz ushered the panelists to the stage to join in on the festivities. The audience was relaxed and laughing before the first question was even asked.
• On several occasions, Baldwin polled the audience for reaction to major events, races, and suggestions. It sent the message to us that Baldwin carefully considers popular opinion before forming and framing his own judgments. Borowitz joked that he was just campaigning for office.
• The panel pointed out that in each of the past five elections, the “draft dodger” has bested the war advocate. We thought that was as reflective as anything of how the American public votes.

PANEL RULES!
Some audience behavior seems to repeat itself panel after panel. We’ll be updating a running list of “PANEL RULES!” that will help ensure that you are not the dweeb of the Panel Nerds.

Panel Nerds don’t like…Zigzaggers
You caught Toobin on CNN last night and had a follow-up question about how he dealt with that guest. More generally, it seems you want to know how he handles himself in those kinds of interviews. The only issue is that you couldn’t get your question out fast enough which, with a panel such as this one, allows the panelists to start ad-libbing  about where your question is heading. By the time you regain your composure, not to mention their attention, the question is no longer the focal point – you are. So instead of giving extraneous information and your own opinion, next time just get to the point.

Citizens United is the Supreme Court decision handed down this past January that allowed for corporations to donate to political organizations under the same rules as individuals, based on the First Amendment (this is why it is often facetiously referred to as the “corporations are people, too” ruling). The donations in question were from corporations to the group Citizens United, which sought to air a documentary against Hillary Clinton during the 2008 campaign, but its corporate funding forbade it from doing as per the Bipartisan Campaign Reform Act (otherwise known as the McCain-Feingold bill). The Supreme Court overturned the sections of BCRA specific to corporate financing in ruling in favor of Citizens United.

The ruling is still a fresh wound to many who oppose any corporate presence in politics, definitively giving corporations the same free speech rights as citizens under the law, thus allowing them to spend money to advocate for positions or candidates they like or dislike (contributions directly to campaigns are still forbidden.) But for some legal scholars (and, obviously, for a majority of the Supreme Court), much of the media outrage seems unwarranted. First Amendment attorney and Mediaite dad Floyd Abrams who argued the case in the Supreme Court on behalf of Senator Mitch McConnell details in an extensive Yale Law Journal piece just what that outrage entailed:

“[T]here were the journalists, typified by CNN’s Jeffrey Toobin, who characterized the opinion as resting on “bizarre legal theories,” and Newsweek’s Howard Fineman, who dismissed the decision as “one of the more amazing pieces of alleged jurisprudence that I’ve ever read.” The New York Times, in separate editorials, excoriated the ruling as “disastrous,” “terrible,” and “reckless.” [...]

President Obama, a former professor of constitutional law, denounced the ruling when it was released and then again in his State of the Union speech without even adverting to the Court’s reliance on the First Amendment. The Nation magazine published a five-page editorial condemning the ruling and urging adoption of a constitutional amendment to overturn it without even mentioning its First Amendment roots. And E.J. Dionne, Jr., in five columns published in the Washington Post both before and after the ruling, first warned of and then denounced the Court’s “astonishing display of judicial arrogance, overreach and unjustified activism.”

“The ruling was treated as a desecration,” he laments, making the point that Citizens United seemed to elicit a more negative reaction than even the recent case where the Supreme Court defended videos of stilettoed women killing kittens with their heels (a sample of which you can watch, thanks to Rick Sanchez, here). Both were decided on the same grounds of freedom of speech. He goes on to elaborate on significant legal precedent in the protection of political speech and campaign finance regulation to make the point that the argument in Citizens United was one recycled out of past First Amendment rulings, often (but not always) involving the press and always celebrated by the media. The facts, he concludes, lead one down a path completely incongruous with what much of the peanut gallery has to say. (It’s also worth noting that peanut gallery including the New York Times, CNN and even Mediaite are all corporations.) The most perplexing part, he concludes, about the reaction to the decision is that many detractors “often chose not to respond to—sometimes not even to mention—Justice Kennedy’s First Amendment analysis in the majority opinion at all, as if the Court had simply ruled that Congress had passed a law with which it emphatically disagreed and would therefore strike down.”

Such is the frustration of attempting to explain away spin with facts.

Rather than assume the media’s endgame is facts, sometimes getting at a reasonable answer requires a bit more of a cynical take. There is certainly an endgame to the visceral reaction against people who aren’t in the business of talking politics being allowed to talk politics, and it isn’t objective. It isn’t even partisan, though right-wingers may look askance an opposition composed of Barack Obama, the New York Times, and The Nation. Those who oppose Citizens United in the media uniformly have one thing in common: they are professionals who discuss political campaigns. They depend on what the Citizens United Hillary Clinton ad aimed to do to put food on the table, no matter whose side they’re on. And people who talk about politics for a living don’t appreciate the threat of their voices being drowned out be people who don’t talk about politics for a living. This is a general rule of thumb.

As political commentary increasingly democratizes thanks to the social media, it can get very, very loud in the public sphere, and it is fairly easy for voices to get drowned out. In such a competitive talking head atmosphere, allowing entities that aren’t even human beings to have their say feels a little bit like when someone plays words like “ai” or “xu” in Scrabble— the rules say they count, but it feels quite wrong that they should. Thus, journalists and media personalities have a vested interest in not having First Amendment rights expanded to make more aggressive the marketplace of ideas in which they are merchants.

That’s not to make a blanket generalization that all politicos who oppose the Citizens United decision are acting to protect their own personalities– on the contrary, the language Abrams cites from Justice Elena Kagan that corporations could have a “corrupting” effect on the political process are valid concerns that many in the media express earnestly. But they are mostly partisan concerns, unless the corrupting has more to do with corruption of the discourse than of any individual wallet. Only this understanding could the scope of the media’s rejection of the Citizens United principles really fit the scope of the decision’s impact.

Events:
The Case for Gay Marriage
New Yorker Night with the Moth
“That’s What She Said”: A Conversation with Steve Carrell
Neil Gaiman, Author, Comic Book Writer, Sci-Fi-Fantasy Legend
Live from New York: The Cast of SNL

The Case for Gay Marriage
David Boies, Brian Brown, R. Clarke Cooper, Cynthia Nixon and Bishop Gene Robinson. Moderated by Jeffrey Toobin

This being the New Yorker Festival, the panel was heavily attended by folks Sarah Palin might call “east coast liberal elites.” A poll by a show of hands proved the audience to be filled with those who are for marriage equality. The panel attendees were also for marriage equality in equal proportions. In attendance were: David Boies who, with Ted Olson, challenged California’s Prop 8; Clarke Cooper, executive director of the Log Cabin Republicans; Cynthia Nixon, the actress, a lesbian, who has been lobbying politicians on GLBT matters; Bishop Gene Robinson,the first openly gay Episcopal bishop; and representing the lonely anti-marriage equality stance, Brian Brown, president of the National Organization for Marriage (NOM).

Brown, clearly outnumbered, was blustery. He repeated several times that the relationship between a man and a woman was “special,” for both reproductive purposes and to create unity. When confronted with the idea of couples who were infertile, he seemed to say that having the right body parts was what counted which seems a bit like giving them an A for effort. He mentioned the standard issue defense that allowing marriage equality would redefine marriage. Nixon, personally affronted, tugged heartstrings throughout the discussion, “I want to say to the gentleman to my left, that gay people who want to marry have no desire to redefine marriage in any way. When women got the right to vote, they did not redefine voting. When African Americans got the right to sit at a lunch counter alongside white people, they did not redefine eating out,” she said to great applause. Later, she came very close to asking Brown whether his family was somehow better than the one she has with her partner and their children. “We are asking for responsibilities, that is what marriage is,” she said.

“People who believe marriage is between a man and a woman are portrayed as bigots,” Brown said, and went on to claim that if marriage equality were allowed, churches would lose their tax exempt status, as organizations do who discriminate on the basis of gender or race. In short, Brown was being victimized. Bishop Robinson was incredulous, “That you’re portraying yourself as a victim is mind-boggling to me,” and went on to point out that Brown, a straight white male, is the last person who can honestly be claiming discrimination. “That you’re reaching so far as to talk about tax status shows me that you have very little to rest on here,” Boies said. Boies stressed the generational divide on this issue, how the youth don’t see homosexuality as those of the 50-and-over set do, “My grandson, who sometimes came to the court during oral arguments, couldn’t understand what this was about! Why anyone would try to keep a gay couple from getting married!” Brown and Boies sparred a bit as Brown made several attempts to prove knew more about the Prop 8 case and Judge Walker’s opinion than Boies did himself. Needless to say, they didn’t fly.

Brown’s last argument was based on the referendums barring marriage equality that have passed all over the country. “Fundamental rights aren’t up to a majority vote,” Boies responded. Cooper, addressing the Republican agenda, said, “Republicans wouldn’t respond well to someone outside the party telling them how they need to change. I consider it my job to try to force acceptance of this issue from the inside.” He said, interestingly, that the main view from within the confines of the U.S. Senate is that being gay isn’t a choice and that he sees easy passage for bills such as the Employment Non-Discrimination Act.

The heart of the conflict is based on the parts of Church and State that aren’t completely separated. That the marriage process involves clergy that are agents of the state means that separation needs to occur more clearly from the outset. Bishop Robinson highlighted the difference between entering and exiting a marriage, “Couples don’t go back to the little church where they got married to get a divorce.”

However, Bishop Robinson sees the tides turning, “What’s happening in the Anglican church is like what happens in a family. A son says, ‘Mom, dad, I’m gay.’ The family is thrown into chaos, asking how expansive can its love be? This is a live issue in every corner of the Church. I think the greatest mistake is walking away from the table.”

When asked in the Q&A afterwards whether the Prop 8 case would have the votes if before the Supreme Court, Boies said there’s a good chance it won’t end up there at all, which prompted a, “But I need another book subject!” from Toobin. Boies joked that he would get his justices from Bush v. Gore (where he argued for Gore), and Olson (who argued the case for Bush) would get his justices and that they would secure a unanimous decision. This elite liberal audience seemed pleased at the thought of such an outcome.

>>>NEXT: New Yorker Night with the Moth – Susan Orlean, David Grann, Jane Mayer, Jeffrey Toobin, Calvin Trillin and Andy Borowitz

While police did not say why they reopened the case, CNN reports they released an official statement confirming their decision:

“The Portland Police Bureau has made the decision to reopen the case regarding the allegations brought forward against Mr. Al Gore,” Detective Mary Wheat said in a statement issued Wednesday afternoon. “Consistent with our policy regarding open investigations, the Police Bureau will not be commenting on any additional specifics regarding this case at this time.”

A renewed investigation “will only benefit Mr. Gore,” said Kalee Kreider, a spokeswoman for the former vice president.

CNN’s Jeffrey Toobin commented on AC360 just now that, while the development is “not good for Al Gore,” it is strange that the police department “only released her statement,” and no “corroborating evidence, other witnesses, DNA evidence” instead.

The CNN report below:

That is…now. But if you think back to the 2008 campaign, you’ll realize that this whole caring-about-the-Supreme-Court thing was sorta absent. Bush had appointed Justices Roberts and Alito, and swung the court decisively to the right. Whoever became president would have the chance to do the same. Conventional wisdom was that the next president would probably appoint two or three new judges, changing the face of the court significantly in the short term, with significant ramifications for the long term.

Right now we can all agree: That’s a huge, big deal. But back then, you could not have gotten anyone to care about it if you’d written it in lipstick on a pig. From my recent piece on AOL News:

I wondered about that in the spring of ’08, when McCain quietly made a speech vaguely against “activist judges” but filled with code words strategically aimed for the right wing. I wondered about that in the summer when Sarah Palin was sprung on an unsuspecting world as the Republican vice-presidential nominee and a pro-life icon. And I wondered about it in the fall when Katie Couric flummoxed Palin by asking her to name a specific Supreme Court case with which she disagreed. (She couldn’t.)

While there was nonstop coverage of Palin (which actually hasn’t stopped since), the discussion never veered into questions of how Roe v. Wade could be overturned by a McCain court or even why specific Supreme Court cases might be important. Even when Dahlia Lithwick — a top thinker and go-to on all things SCOTUS — got a Newsweek cover out of it in September ’08, it was less about the court than a tart essay about Sarah Palin (with a sexy-lipstick-themed cover, no less).

It’s not that Lithwick wasn’t writing about the court — that’s her specialty. It’s that outside of that specialty, it just wasn’t a hot topic.

And amazingly, it wasn’t. Jeffrey Toobin had told me in May 2008 that overturning Roe v. Wade, would “not take long if there is another Republican appointee.” But nobody seemed to care. I mean, yes, there were a few articles, obviously, but – we all know the difference. Proportionally, the Court got very little ink. Take a look at Politico’s archives from that time, or even Glenn Greenwald‘s – there, if you looked for it, but just not the focus.

But when it comes to buzz about the 2008 election, there is only one arbiter that matters: Game Change, by Mark Halperin and John Heilemann. There, in the index, was the answer, under “Suprme Court, U.S.”: Four references. I checked them. Three were about how Steve Schmidt had formerly worked on the Roberts and Alito confirmations; one was about Katie Couric’s question to Sarah Palin. “Rezko, Tony” got eight. It’s official: No one cared about the Supreme Court during the 2008 election.

But they do now! So sharpen thee your Kagan headlines. The Supreme Court matters. Maybe it’ll even matter in 2012, too.

Oh sure, NOW you care about the Supreme Court! [AOL News]
Sunday Show Highlights: A Whole Lot Of Kagan Going On [Mediaite]

Related:
Toobin: A McCain Court Could Overturn Roe In “Maybe A Year” [ETP, May 2008]

Cooper welcomed a bipartisan panel featuring RedState.com editor Erick Erickson, CNN contributor Roland Martin (alas, sans ascot), and CNN legal analyst Jeffrey Toobin to discuss the birther movement and whether a long-form birth certificate really will satisfy their curiosity. In addressing Erickson, who, despite being anti-Obama, has denounced the birther movement, he admitted that, since his interview with birther army doctor Terrence Lakin, “I’ve received a lot of emails– uh, vitriolic emails– over the last couple of days from birthers who seem to kind of change the game mid-stride.” Erickson ends up agreeing with Martin and Toobin that “these people are masters of moving the goalpost” and that there is little chance that those claiming President Barack Obama is not a citizen will ever find definitive proof to dissuade them from that belief. Toobin put it a bit more crudely: “These people are bigots, they’re racists, they’re freaks, they’re lunatics– these are not rational people in American politics.”

Video below:

Having watched the Democrats collect the required number of votes to pass their highly contested health care reform bill, Sanchez asks Toobin whether the two major legal options the Republicans have before them to defeat the bill outside of Congress– suing against the bill itself and suing against a “deem and pass” vote– have any possibility of keeping the bill from becoming law. On the first option, he noted that “they can certainly sue; anyone can sue, this is America. But I think it is extremely unlikely this [health care] law will be declared unconstitutional.”

And as for the indirect “deem and pass” vote, he called it “clearly constitutional” and pointed out that Democrats have tried in the past to overrule Republicans similarly. “What happened when the Democrats tried it? They lost.”

Our sources indicate that the House will use deem and pass to get the bill through because they lack the votes to do so without it, and while all precedents point to a legal battle over “deem and pass” leading nowhere, the chances Republicans will let this go quietly are slim to none.

Toobin’s commentary below:

Host/moderator Andy Borowitz set the tone for the evening with ten minutes of stand-up comedy at the top of the event. It sent the message that this wasn’t going to be the same old discussion evaluating the president’s first year in office. It was a night with more laughs than sharp critique. And that’s just what the crowd was looking for on the night of the president’s State of the Union address.

Borowitz first invited Trillin to join him on the stage so Trillin could share his essay titled “Anticipating the Inauguration of Barack Obama.” While whimsical in its design, the poem helped remind audience members just how excited the nation was at the start of the president’s term. But rather than engage in a discussion about the disappointment and disillusionment now attached to Obama, this panel chose to emphasize his strengths and achievements over the course of his first year.

It was only Janeane Garofalo who showed her emotions – and passion – on her sleeve (her best quality). Jonathan Alter and Jeffrey Toobin came to Obama’s defense when the criticism mounted – such as when Garofalo charged Obama still seeks bipartisanship while his enemies intend to destroy him, something Alter rejected as a lesson the president learned nearly a year ago after the fight for the stimulus bill. Alter was the resident expert on timelines and facts as he has just completed a book about Obama’s first year in office.

Toobin commented that Obama’s life should have been easier this year as he came in with 58 Senate democrats behind him. He pointed out that 30 years ago Republicans weren’t as far right-wing as they are today and they negotiated deals with regularity but today are “against everything.” Trillin was quick to point out that since Obama took office, his opposition made it their mission to derail all of his efforts.

Everyone agreed that Obama made mistakes and that some mishaps occurred over the year. But they wanted a break for at least one night from having to think about the serious issues that plague the world. Instead, they entertained each other and the audience with the lighter side of the debate.

What They Said
“Here we have a president who only escalated one war and he gets the Nobel Peace Prize. Think about how low the bar was set by President Bush.”
- Jeffrey Toobin makes us wonder what escalating no wars would earn

“We’ve been more successful at convincing Sunni warlords than we have at Republican senators.”
- Andy Borowitz is happy that the “Sunni Awakening” didn’t have the option to filibuster

“It bothers me when people call the teabaggers populists. They’re not populists. They’re Foxulists.”
- Jonathan Alter says tea baggers only watch the “most trusted” network

“Who would want to be the President of the United States, though?”
- Janeane Garofalo thinks there’s something wrong with the position these days

“The problem with Hillary is she’s not good with meter, and [Obama’s] not good with rhyme”
- Calvin Trillin sees every person through the lens of poetic possibility and gives us an idea for a “Perfect Strangers” like sitcom

“The Republican party is dying. The Republican party is only succeeding because Obama hasn’t succeeded yet.”
- Jeffrey Toobin wants the Democrats to regain control over public opinion

What We Thought

• Alter quoted Stephen Colbert and Trillin cited “The Daily Show” at different points. It’s clear that not only are these comedy shows here to stay, they’ll continue to impact the political sphere for a long time.
• The panel spent a good portion of the discussion talking about filibusters and their influence on the passage of bills. What was once a last resort used by desperate southern senators is now part of the landscape of American government.

PANEL RULES!
Some audience behavior seems to repeat itself panel after panel. We’ll be updating a running list of “PANEL RULES!” that will help ensure that you are not the dweeb of the Panel Nerds.

Panel Nerds don’t like…Tangent Makers
We didn’t like tangents when they were opposite over adjacent angles, and we sure as heck don’t have patience for them now. This panel was about evaluating how Obama fared in his first year. That should be open-ended enough as the panelists covered the gamut – foreign, domestic, social justice issues. Whether Rahm Emanuel will run for mayor of Chicago is not of interest to the audience. Thankfully, Borowitz fielded the question himself assuring the asker with a confident “No” before moving on to the next pertinent question.

For those covering the event, this is a big deal — a new voice not only shakes up the court, but has the potential to carve new fault lines along 5-4 majorities and make Antonin Scalia that much less of a scary, scary man. Never mind that, anything can happen at these hearings: Family members can tear up! Pubic hair can appear on cans of coke! Jeff Sessions can get his chance in the spotlight! Confirmation hearings provide some great moments in covering the Supreme Court — so Mediaite thought we’d ask some of our favorite legal eagles to share their thoughts on the process. (We specifically chose the empathetic ones.) The New Yorker/CNN’s Jeffrey Toobin, Slate/NYT’s Dahlia Lithwick, CBS’s Andrew Cohen and SCOTUSblog’s Tom Goldstein graciously responded to my questions, perhaps grateful that they were nicer than what the GOP probably has planned for today. Here, for your SCOTUS-tracking pleasure, are their responses (edited for clarity to make them sound smarter, because clearly they need my help).

How many of these confirmation hearings have you attended?

Toobin:  I covered Roberts and Alito in 2005.  Remember there was an eleven year gap between those nominations and Breyer in 1994. During the last dramatic confirmation hearing — Clarence Thomas in 1991 — I was an Assistant U.S. Attorney in Brooklyn.

Cohen: This is my third confirmation. I covered Alito and Roberts as well.

Goldstein: I’ve been to all of Ginsburg and Breyer (as Nina Totenberg’s intern) and Roberts, and some of Alito.  We’ve live-blogged Roberts and Alito, if I remember right.

Lithwick:  I covered Roberts and Alito and am at this one. No vacancies before that since I was at law school, I think

Is this a huge mecca for legal media? Going to any fancy lawyer parties? (oxymoron alert!)

Cohen: I have no idea about any parties. I don’t “party” when I cover something like this because I have to work 18 hour days. I have brought my 10-year-old son with me, and he’s excited to be a part of history, and when I’m off we’ll be enjoying DC. I suspect you will be hearing that same answer from most serious journalists who are covering this. It ain’t the Hamptons.

Goldstein: All of the legal media is certainly here — e.g., all of the S. Ct. press corps is here, though some have left.  The legal media doesn’t have much in the way of press jockeying.  Sometimes law firms or law schools will offer up their people, but that’s about it. For this, it’s the political people and interest groups who are jockeying, and they are doing it a ton.  The rest of the media is here, and they make up the great majority of people.  By week’s end, the non-Hispanic media will be pretty much gone.

Toobin: I don’t think it’s a huge mecca for legal media.  A lot of people “cover” a confirmation hearing by watching it on TV.  I am unaware of a single party.  Perhaps I’m not invited.

Lithwick: If there are lots of parties I don’t know about ‘em. Yes every legal journo around is here. I am going to a book party tonight. But if its Court Nerd Sundance Festival I am not on the right lists.

Whose analysis (other than your own) are you looking forward to the most?

Cohen: I enjoy reading Dahlia Lithwick at Slate. Also, Tony Mauro for the National Law Journal. Both first-rate analysts-commentators.

Lithwick: Tom Goldstein’s analysis at SCOTUSblog. Nina and Ari at NPR have been en fuego. Andrew Cohen at CBS. Charlie Savage and Adam Liptak at Times. Jan Greenburg at ABC. I am sure I am forgetting people. I am not looking forward to my own coverage at all. It will be like covering a long sad group therapy session . . .

Toobin: I am looking forward to following SCOTUSblog.com.  Tom Goldstein’s team does an extraordinary job — fair, comprehensive, and rigorous.

[Goldstein's answers were not organized according to question, so the closest I have to an answer for this is, "I have a lot of faith in the S. Ct. press corps.  I am doing an hourly show each night with Nina Totenberg." But I'm sure he loves his co-respondents as much as they love him.]

Do you think the presence of Sotomayor’s mother in the courtroom will have a chilling (or chastising) effect on zealous GOP questioners, a la the teary Mrs. Alito a few years back?

Lithwick: Having her mom here will chill them some but the Tom Tancredo stupidity [calling the National Council of La Raza "the Latino KKK"] will chill them more. Cornyn can’t afford to lose Hispanic voters

Toobin: I think the overall politics of the situation — fear of further offending Hispanic voters — is the bigger check on obnoxious questioning.

Goldstein: I don’t think that the family’s presence will inhibit attacks.  Everyone is playing a role here, and for some that role is to be really nasty.

How much will the current members of the court participate? Do they have any media presence at all?

Cohen: The current members of the Court do not participate at all in this process. It has nothing to do with them. Justice Ginsburg DID do an interview recently which appeared in the Times.

Lithwick: No. The fact that Ginsburg is even talking to papers is amazing.

Toobin: In the confirmation hearing, zero, although I was interested to read Ruth Ginsburg’s interview with Emily Bazelon in the Times.  RBG seems to be stepping up her media presence.

Toobs! As the guy who wrote the definitive SCOTUS book, how do you think she’ll fit into the club?

Toobin: Fine.  Ever since  Rehnquist took over as chief, the justices have made a special effort to get along with each other.  It’s a collegial court.  They fight on paper, but not in real life.

Do you look at the all-day coverage, the frenzy of suddenly caring about this, and think: Where WERE all you people during the election? The SCOTUS pick got virtually no attention during the race, it was really quite amazing to me.

Cohen: I don’t really perceive a frenzy. A CBS poll we just did revealed that nearly two-thirds of Americans don’t have an opinion about Judge Sotomayor.

Toobin: I don’t think it’s a “frenzy.” I think most people regard the result as a foregone conclusion.

Lithwick: My whole life in election years is trying to persuade people that the court matters. They are not persuaded. Then these hearings happen in bad cartoonish ways and i think “maybe its better we didn’t talk about the court during elections.”

Is there a burden on Sotomayor here to be all things to women?

Lithwick: I think there is a burden on her to be  both soft and accessible (i.e. not a bully) and also mechanical and Vulcan (i.e. not “empathetic”)  — that’s a tough line. I think she may have to walk it by being, in effect, less than she is; by just being very neutral and boring.  Women find her relatable in ways they didn’t find O’Connor and Ginsburg. Sotomayor is more human. That’s both a benefit and liability.

So far, the focus has been on her fireman case, and the “Wise Latina” comment. Have you been surprised there’s been so little chatter about Roe?

Lithwick: Protesters in front of senate handing out dismembered baby cards and saying “No on Sotomayor.”  See also Randall Terry.  There is a lot out there about Roe, especially for a nominee that has no significant abortion cases.

Toobin: I think people just assume — correctly, in my view — that a pro-Roe president will appoint a pro-Roe Justice. And she will be replacing a pro-Roe Justice.

Cohen: Nothing surprises me about the pre-confirmation hype any more. Typically, what is important gets overlooked and what isn’t is the focus.

How much of this is optics – the carefully-planned briefing book, the sparkling all-American bio, in effect the PR campaign. Would you call this a substantive process?

Cohen: This is not as substantive as it ought to be but it’s better than what usually passes for hearings on Capitol Hill.

Can this really change everything?

Toobin: Who knows?

Lithwick:  It can change the way we think about the courts and the way we talk about them. Maybe energize Obama team for next pick?

Cohen: Oh, I don’t think it changes much although I happen to think that the Court SHOULD look a little more like America, whether it’s populated by more conservative or more liberal voices.

What would you say to someone who thinks covering the Supreme Court is boring?

Cohen: Supreme Court coverage often is boring. Occasionally it isn’t. This process today would be far less boring if the politicians spoke less and the nominee spoke more and more candidly.

Lithwick: I would say Suprem Court coverage is awesome. But confirmation hearings are to the Supreme Court what pop tarts are to fine dining…

Toobin: My life is devoted to disproving the proposition that the Supreme Court is boring.

Photo credits from top: Sotomayor: Michael Reynolds/EPA (via MSNBC); Jeff Toobin: Promo shot for The Nine via JeffToobin.com; Dahlia Lithwick: C-Ville.com; Andrew Cohen via Twitter; Tom Goldstein via AkinGump.com.

“Obiter Dicta” is a law joke. Please indulge me, I so rarely get to make them anymore.