Bench Memos

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Thundering Silence


In his kind e-mail retraction, Walter Dellinger acknowledges that my position—namely, that a Supreme Court reporter ought, at a minimum, to disclose the fact that her husband (and/or the institution he heads, which in Eugene Fidell’s case amounts to his institutional alter ego) has taken part in a Supreme Court case that she is reporting on—“has far more adherents” than his position that no disclosure should be expected.


Indeed, given how much influence Linda Greenhouse has, how popular she is on the Left, and how eager many folks would be to curry favor with her, it is striking that in the seven weeks since I first called attention to Greenhouse’s conflict of interest, and in the ten days since New York Times’s public editor Clark Hoyt’s column, of all the voices in the blogosphere and in the media more generally, virtually no one has come to Greenhouse’s defense.  There’s an obvious reason for this thundering silence:  under widely accepted standards of journalistic ethics (standards that I set forth in my initial post on this matter), Greenhouse’s position is indefensible. 


Moreover, if Greenhouse, Bazelon, and Lithwick genuinely believe that Greenhouse’s concocted distinction (see fourth paragraph here) between the interests of counsel for a party and the interests of counsel for an amicus is sustainable, then it would be good to see them spell out an actual persuasive (or even plausible) argument to that effect.  Absent that, any reader familiar with appellate litigation is fairly entitled to conclude that these Supreme Court journalists/commentators don’t know up from down.  (I note in this regard that nothing that Walter Dellinger has written suggests that he buys the Greenhouse distinction; rather, his position is that a Supreme Court reporter need not disclose any spousal conflict of interest, whether the spouse represents a party or an amicus or has some other role.)


It’s also telling that no one (so far as I’ve been able to tell) has tried to rebut law professor Peter Berkowitz’s September 2006 demonstration (quoted in point 1 here) that Greenhouse’s morning-after account of the Hamdan ruling was remarkably biased.  Ironically, it is those who generally think that Greenhouse is an objective reporter who ought to have special cause to wonder how it is that her reporting just happened to go haywire in this case in which her husband appeared as counsel of record on an amicus brief in support of detainee Hamdan.  (Those of us, by contrast, who regard her reporting on politically charged cases as routinely biased would find it impossible to assess the relative contributions of her spousal bias and her broader political bias.)

Tags: Whelan


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