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Bench Memos

NRO’s home for judicial news and analysis.

Re: McCain and Judges



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Would John McCain offer a “no McCain-Feingold litmus test” pledge on Supreme Court appointments?  I expressed doubt this morning.  Well, not only did McCain defy my expectations, he did so a couple days before I expressed them.  A kind colleague hereabouts has pointed out a Corner post from Monday that I missed, in which NRO’s Mark Hemingway reported that he got the Arizona senator on the record that “McCain-Feingold would not be a litmus test for the justices he appoints.”

Thundering Silence



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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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McCain and Judges



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Collin Levy capably reviews the issues regarding John McCain and judicial appointments in today’s Wall Street Journal.  Like Ed Whelan, she gives him some good advice too.  But would McCain not consider a “no McCain-Feingold litmus test” pledge beneath him?

On McCain and Supreme Court Appointments



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NRO’s post-Florida symposium on what John McCain needs to do to rally conservatives if he is the Republican nominee includes a brief contribution from me on the matter of Supreme Court appointments.

Tags: Whelan

McCain’s Alito Problem



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Jim Geraghty asks, elsewhere on NRO, regarding the story about John McCain saying that as President he would appoint Justices like John Roberts but not Sam Alito:

“[I]f a potential GOP presidential nominee said that he was kind of iffy on Alito, one of the few true clear-cut victories for conservatism in recent years, wouldn’t you think that by the time McCain finished the following sentence, everyone in the audience would have already typed into their Blackberries, “U WON’T BELIEVE WHAT McC JUST SAID” and begun preparing their furious denunciations? Wouldn’t the conservatives who heard it be knocking people over in order to get in front of a camera to rip McCain for saying that? Or was this some odd crowd of conservatives who thought Alito was crassly vocal in his conservatism?”

This requires an answer.

1.  If the meeting was (as described) small and private, it was not the kind of forum with any “audience” who would type into their Blackberrys.  Moreover, comments at most such meetings are “off the record”:  participants agree specifically not to run out and tell the media what was said.  And if the participants were conservatives, I would expect them to be men and women who would honor such a commitment.  THAT is why we have not heard about it in the press.

2.  Conservatives who care about nominations of judges who practice judicial restraint are, constitutionally, restrained people themselves.  They do not trample each other to get in front of TV cameras.  You are thinking of some other crowd.  I would expect that folks who heard McCain say such a thing would be deeply disappointed, but not terribly surprised.  I would further expect them to express dismay among themselves, but not run to the media about it.

3.  Most important, the one thing certain in all this is that you will not find a single “conservative” who is in any way educated on the matter of the Constitution and the courts who thinks Justice Alito is “crassly vocal” about political matters or anything else.  He is a “judge’s judge”:  fastidiously impartial, rational, intellectual, and apolitical.  Personally, he is a restrained and modest man — all the more admirable given his prodigious intellect and legal talents.  It is regrettable that such a hypothetical regarding Justice Alito would even be suggested on NRO.

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Walter Dellinger’s Retraction



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Walter Dellinger has kindly written me to retract the one sentence of his Slate post last week that seemed to bear on my back-and-forth (see here, here and here and links therein) with Emily Bazelon and Dahlia Lithwick on Linda Greenhouse’s conflict of interest.  With Walter’s permission, I publish his e-mail to me (emphasis added):

 

Dear Ed –  In a posting last week on Slate, I included a sentence that could easily be read to call in question your “honesty.”  I had no such intention and I write to you now to recall that defective passage.  The issue involves criticism of Linda Greenhouse for “bias” and the New York Times’ (in my view) tepid defense of her work. I concluded that the Times was “wrong to dignify these attacks as if they were honest complaints that deserved an answer.”  I regret that last hastily written sentence.   Since you have been a central figure in this debate, readers would naturally assume I was referring to you.  In fact, I had not even read what you had written on this subject.  What motivated me to write was the fact that I have been following criticism of Greenhouse for at least 20 years and never expressed how off-base I find it to be and this seemed to be an opportunity to express that thought.  The point I wanted to make was not that Greenhouse didn’t have strong views, but that every reporter does because “indifference” is a much a view as any other position.  Moreover, over the years I had never seen a demonstration that her views had caused her to make any mistakes in her stories, and that if her stories were infected with bias such mistakes would show up.  That same principle — professionals should be able to overcome their views and get their work right — applies as well when a spouse’s involvement is said to be the source of the views.  While I disagree with your position on the relevance of a spouse’s role, your position, I believe, has far more adherents than mine.   

 

The question of Greenhouse’s broader bias is beyond the scope of this post, though I will note that I quote in point 1 here vigorous criticism, shared by many, of her coverage of the Hamdan ruling (a case in which her husband submitted this amicus brief as counsel of record for two amici), that I list here several other instances that I have run across (without any searching inquiry) of Greenhouse’s biased reporting, and that plenty of other observers, on The Corner and elsewhere, have called attention to other matters of bias.

 

I thank Walter for his retraction, and I trust that Dahlia Lithwick, who posted Walter’s original observations, will call his retraction to the attention of Slate’s readers.  In the meantime, I’m still waiting for Bazelon’s and Lithwick’s retractions of their many errors in our exchange.

Tags: Whelan

Update on D.C. Event on Judicial Confirmations



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As I previously noted, this coming Thursday, January 31, I will be taking part in a lunchtime event at the National Press Club on judicial confirmations.  The event, sponsored by the Federalist Society, will feature an opening address by Senator Arlen Specter, followed by a panel discussion.  The list of panelists is now complete:  My fellow panelists will be Michael J. Gerhardt of the University of North Carolina law school, Simon Heller of the Alliance for Justice, and Mississippi lawyer (and former Fifth Circuit nominee) Michael B. Wallace.  The panel will be moderated by David Savage of the Los Angeles Times.  To register, or for more information, go here.

Tags: Whelan

Postscripts on Clark Hoyt’s Shilling on the Greenhouse Conflict



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A few follow-ups on New York Times’s public editor Clark Hoyt’s strange act of baselessly attacking me at the same time that he validated the heart of my complaint about Linda Greenhouse’s conflict of interest in reporting—without any disclosure of her husband’s role—on important Supreme Court national-security cases in which her husband, an ardent opponent of Bush administration policies, participated:

 

1.  Last Wednesday, I sent this letter to the editor of the New York Times.  I wrote it to fit within the Times’s 150-word limit for letters.  I also asked that it appear in Sunday’s (yesterday’s) paper so that it would be accessible to the same set of folks that read Hoyt’s column on the matter:

Even as he validated the heart of my complaint about Linda Greenhouse’s conflict of interest, public editor Clark Hoyt attacked me for my allegedly “increasingly intemperate and personal attacks [that] feel more like bullying” and for my “partisan” assault on Greenhouse.   The trusting reader might imagine that I’ve been spewing expletives and rage.  In fact, my carefully documented criticisms of Greenhouse have all related to her performance in her capacity as a journalist and have not been ad hominem, and they’re more temperate than many Times editorials.  Hoyt’s charge that I’m “partisan” evidently means nothing more than that I’m conservative.  It’s Hoyt, the supposed “readers’ representative,” who is using the pages of your paper to bully me.   
 

I invite readers to review my full responses to Hoyt on National Review Online’s Bench Memos blog on Jan. 21 and 22.  
 

Quis custodiet ipsos custodes? 

As you might guess, the Times somehow did not see fit to publish my letter.

 

2.  Last Sunday, on the same day that Hoyt’s column appeared, I sent Hoyt this e-mail:

Dear Mr. Hoyt:

I was rather surprised to see that you chose to go out of your way to attach pejorative labels to me, without citing any supportive evidence, at the same time that you endorsed the merits of my basic criticism of Greenhouse’s conflict of interest.  Just a few quick requests:

1.  Please identify your best example of an “intemperate” attack I have made on Greenhouse.
   

2.  Please identify your best example of a “personal” attack I have made on Greenhouse. 

3.  Beyond any evidence you can try to offer of “intemperate” and “personal” attacks by me on Greenhouse, please cite any evidence that supports your assertion that I have been ”increasingly intemperate and personal”.  Specifically, please explain your initial baseline for the intensity of my “intemperate and personal” attacks, and please tell me your evidence of an increase in intensity.

4.  What do you mean by the word “partisan”?  Is that just a pejorative for someone who doesn’t share your political views?  Or is there some sense in which you believe you can show that I am inconsistent in the principles that I advocate (e.g., that I favor party over principle)?

Given that you have already seen fit to attack me in writing with these labels, I expect you to be able to provide prompt responses.

As you might guess, Hoyt has not provided me the courtesy of a response.  (My own refutation of Hoyt on these points is in Part 3 of my 4-part response to his column.)

 

3.  Last Wednesday, I sent Hoyt this brief e-mail:

 

In case it’s of interest to you, I copy below my 4-part response to your column.  If you’d see fit to link to them, or post them, on your web page, I’d be grateful.

 

As you might guess, Hoyt has not linked to, or posted, my response on his web page.

 

Meanwhile, I see from the good folks at Power Line that Hoyt’s shilling continues.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of January 28



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Kerry’s bluster, O’Connor’s departure, and Kennedy’s profundities: 

 

Jan. 30      2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails.  The Senate’s longstanding tradition of providing Supreme Court nominees an up-or-down vote on the Senate floor is respected.

 

Jan. 31      2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire from active service takes effect.  Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise.  Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency.  Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases.  Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations. 

 

Feb. 3        1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell.  Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power.  While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous.  Kennedy’s distinctive contribution to the Court is a series of inanities presented as profundities.  To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Planned Parenthood v. Casey (1992).  Translation:  We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”  Roper v. Simmons (2005).  As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy.  Lawrence v. Texas (2003).  Translation:  We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”  Ashcroft v. Free Speech Coalition (2002) (emphasis added).  It’s odd (and perhaps explains quite a lot) that Kennedy would think that speech (including opinion-writing?) should precede thinking.  The notion is especially odd in a case concerning virtual child pornography.

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Getchell Withdraws



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Duncan Getchell, who President Bush had nominated to fill an open “Virginia” seat on the U.S. Court of Appeals for the Fourth Circuit has withdrawn from consideration, apparently due to opposition from both Virginia Senators.  This creates another spot for Bush to (try and) fill with a qualified nominee

Unfit to Print?



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Many thanks to Ed Whelan for giving them the vapors over at the New York Times.  He is more than a match for Linda Greenhouse, her editors Dean Baquet, Jill Abramson, and Bill Keller, their shill Clark Hoyt (the alleged “readers’ representative” who thinks reader Whelan is the problem), and Greenhouse’s defenders Emily Bazelon and Dahlia Lithwick.  If Ed were the “bully” Clark Hoyt takes him for, he wouldn’t be so obviously winning this argument.  (If you haven’t kept up with this tale, Andy McCarthy’s article today will lead you to the relevant stuff.)

For me this whole contretemps is perfectly simple and easily resolved.  I tend to view “conflict of interest” in pretty strict terms, focusing on what tangible benefit a decision-maker or (in this case) a journalist would reap from a decision coming out a certain way, or a story being reported a certain way.  If no such benefit can be imagined–no conflict.  But the trouble with Greenhouse’s reporting on Guantanamo-related cases, in which her husband Eugene Fidell has taken an active part as an amicus curiae advocate, is that knowing of his activities leads to a suspicion of bias in her reporting–and bias and conflict of interest, while closely related, are not identical.  Or one might say that knowing of Fidell’s activities leads to strengthening of such a suspicion where his wife’s work is concerned, since there is ample evidence on the face of Greenhouse’s whole career that she brings to her work a strong bias in favor of liberal activist outcomes on the Supreme Court.  (The very first article I ever published at NRO was in part concerned with this well-known fact about Greenhouse.)

So what’s the resolution?  Since mere bias is not a “conflict of interest” here but stems from a cause other than actual interest (namely ideology), I wouldn’t ask that Greenhouse be driven off the Supreme Court beat, or even “recuse” herself from every case in which Fidell becomes involved.  Transparency should be the byword at the newspaper that prides itself on “all the news that’s fit to print.”  Not in online biographies, as Clark Hoyt feebly suggests (sounding like that diffident sheep mildly coughing on a distant hillside, as P.G. Wodehouse would put it).  In every story Greenhouse files on every case in which Fidell or his “National Institute of Military Justice” is involved, print something like this, perhaps at the end, and suitably adapted to each such instance: “This reporter’s husband, Eugene R. Fidell, is a legal activist who has filed an amicus brief in the Boumediane case opposed to the government’s position.”

Just print it.  How hard is that?  Then readers of the Times have all they need to know and can make up their own minds.  Such a statement doesn’t punish or humiliate Greenhouse.  It simply discloses.  It’s simply . . . honest.

Another Worse Than Greenhouse



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Life is too short for me to respond to every irrational lefty blogger, but sometimes the opportunity is too delicious to resist.  Take Mark Obbie, “director of the Carnegie Legal Reporting Program at the Newhouse School” of Public Communications at Syracuse University and “a legal journalist for more than 25 years.”   

The first time I ran across Obbie was when I posted my critique (“See Spot Run. See Joan Write.”) of Joan Biskupic’s embarrassingly obtuse “news analysis” of the Supreme Court—only to learn from the Point of Law blog that Obbie had lavished praise on Biskupic’s article (“Hail, Joan of McPaper”). 

Obbie has now applied his same critical faculties to the controversy over Linda Greenhouse’s conflict of interest, and the results are even more laughable.  Obbie’s first post on the matter on Sunday leads with this mistaken assertion:  “New York Times public editor Clark Hoyt sides with Linda Greenhouse and Times editors in a dispute over an alleged conflict of interest.”  In short, Obbie didn’t even understand that Hoyt had validated the heart of my complaint.  (Obbie also labeled my tone “paranoid”.) 

Yet on Tuesday Obbie embraced the Bazelon/Lithwick piece, whose central complaint was that Hoyt had “dragg[ed] [Greenhouse] out to the woodshed.”  Obbie doesn’t even recognize that he’s contradicted himself.  He’s too focused on celebrating his delusion that Bazelon and Lithwick have done a “much more thorough job of putting Ed Whelan in his place.”  Nor does he do his readers the courtesy of linking to my thorough refutation of Bazelon and Lithwick. 

Obbie epitomizes the broader problem:  Here you have a veteran legal journalist directing a legal reporting program at a university, yet he can’t understand what he reads and is more interested in indulging his political animus than in fairly presenting the controversy or offering intelligent commentary.

Tags: Whelan

Slowly Regaining Sobriety?



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A reader calls my attention to a Slate blog, where Bazelon now says that her and Lithwick’s “basic point, which Whelan ignores, is that critics on the right go after Greenhouse with an overwrought vigor not visited upon any other Supreme Court reporter (and few other reporters in general).”  Gee, somehow I saw their essay as focused on me.  In any event, I can’t speak for other conservatives, and I don’t see why Bazelon should expect me to do so.  (Update:  On The Corner, Ramesh properly observes:  “Bazelon and Lithwick have already said that conservatives go after Greenhouse because ‘she’s the voice on the court that matters most in the national press.’ If Whelan and the rest of us are correct in saying that she regularly displays liberal bias, then of course we would criticize her more frequently than we would criticize other, less influential commentators.”)

 

As for the suggestion that my vigor is focused exclusively on Greenhouse, Bazelon contradicts herself in the very next paragraph where she cites examples where “he [yours truly] has gone after us, too.”  I certainly have—and with good cause—but the very different charge in her essay was that I’ve “slimed” them.  Once again, Bazelon seems not to recognize the relevance of the distinction between a meritorious criticism and a meritless one.

 

Meanwhile, Lithwick finds it notable that there weren’t “rants about deliberate bias and dishonesty” regarding Jan Crawford Greenburg’s and Jeff Toobin’s separate books on the Supreme Court.  I will note that I leveled vigorous and carefully explained criticisms about shortcomings in Toobin’s book (in a five-part series in late September:  Parts 1, 2, 3, 4, 5).  By contrast, I found Greenburg’s book to be quite commendable.

 

Lithwick’s broader point, if I’m following it, would seem to support more disclosure by reporters, along with less pretense of objectivity.  That seems sensible to me.  It’s Greenhouse’s lack of disclosure, and her pretense of objectivity, that triggered my original complaint.  So maybe Lithwick, now that she’s sobering up, will call on Greenhouse to disclose her conflicts? 

Tags: Whelan

Still Far From Sober



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In the last point in my “Far From Sober” essay, I noted that Bazelon and Lithwick had failed to provide any link demonstrating their supposed support for Justice Scalia’s decision not to recuse in the energy policy task force case (and that Lithwick had in fact called for Scalia’s recusal).  Following the publication of my essay, Bazelon and Lithwick added a link, but the linked article—an essay by Lithwick—doesn’t support their claim.  Lithwick’s essay defends Scalia’s non-recusal in Lawrence v. Texas—it was written nearly a year after the Court’s ruling in that case—but states that “he ought to think seriously about staying out of the Cheney appeal, based on his cavortings with the vice president.”  Some defense. 

 

Why can’t Bazelon and Lithwick just acknowledge their error on this tangential point?  Perhaps because once they begin to hold themselves to a minimal standard of accuracy, their entire essay collapses.

Tags: Whelan

Far From Sober



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On NRO today is my essay “Far From Sober:  Slate’s defense of Linda Greenhouse” responding to a Slate essay yesterday evening by Emily Bazelon and Dahlia Lithwick.  Here’s my opening paragraph:

 

In “Lay Off Linda:  Why doesn’t the New York Times stand up for Linda Greenhouse,” Slate’s Emily Bazelon and Dahlia Lithwick offer a hilariously defective defense of Linda Greenhouse’s reporting on prominent national-security cases in which her husband Eugene Fidell, an outspoken opponent of Bush Administration policies, has participated.  Whereas I have demonstrated (in this series of Bench Memos posts:  Parts 1, 2, 3, and 4) that New York Times public editor Clark Hoyt has acted as a shill for Greenhouse, they complain that he has “dragg[ed] … her out to the woodshed.”  Most remarkably, they call on the New York Times to stop providing (horrors!) “sober explications” of complaints about her reporting.

 

Tags: Whelan

Response to NYT’s Public Editor on Greenhouse Conflict—Part 4



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In the course of his recent column disapproving of the New York Times’s decision to hire Bill Kristol as an editorial-page columnist, public editor Clark Hoyt noted that Kristol (who, I’m pleased to note, serves on the policy advisory board of the institute I head) had declined to discuss with Hoyt his previous assertion that the Times is “irredeemable”.  If Hoyt is still puzzled by the merits of the proposition that the Times is irredeemable, he need only examine his own conduct in handling the matter I raised.

 

Hoyt purports to be the “readers’ representative”, but he has instead shown himself to be a shill for the Times’s editors and for Linda Greenhouse.  Consider:

 

1.  Part of the job of a newspaper ombudsman is to receive and assess complaints in order to advise whether internal policies are being followed or need to be changed.  What ought to matter to readers is whether the complaints are meritorious.  That matter does not turn on who is making the complaints or the tone in which they are made, and it is an obvious ad hominem fallacy to imagine otherwise. 

 

2.  The best way to discourage meritorious complaints from being made is to attack the person making the complaint.  That’s exactly what Hoyt has done to me.  At the very time that he validates the heart of my complaints, he goes out of his way to sling baseless charges at me (as I discuss in Part 3).  I’m ready and able to defend myself against Hoyt’s attack, but a lot of other potential complainants won’t have blogs at their disposal or will be deterred by the prospect of being maligned in print. 

 

3.  Hoyt’s assertion that my complaints “feel more like bullying” is revealing, for Hoyt is putting himself entirely in Greenhouse’s shoes and fighting her battle—or perhaps merely what he imagines to be her battle—for her.  (In connection with my flipping of the “bullying” charge, I’ll add this fine comment from a reader:  “Bullying? That’s rich! Here is the alleged ‘reader’s representative’ of one of America’s largest and most profitable newspapers descending to personal abuse of a blogger and head of a small non-profit organization whom he, forsooth, with all the resources and the vast audience of The New York Times to back him up, accuses of ‘bullying’ for pointing out a simple conflict of interest.”)

 

4.  As I discussed in Part 2, in sharp contrast to his irrelevant and baseless charges against me, Hoyt offers only the softest of indirect criticism of the sloppy thinking of Greenhouse and the editors on the core substantive question. 

 

5.  Hoyt’s recommended approach to disclosing conflicts of interest is driven not by any sensible assessment of what would best serve readers but by his perception of how the Times can best defend itself from the “constant partisan assault” that he imagines it to be under.  (See Part 1, points 2 and 5.)

Tags: Whelan

Response to NYT’s Public Editor on Greenhouse Conflict—Part 3



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When a reader suggested that I send my complaint about Linda Greenhouse’s conflict of interest to the New York Times’s public editor (or “readers’ representative”), I figured that doing so would probably be futile.  But the unusually strong (and favorable) reaction that my complaint elicited from readers—especially from certain readers very savvy about the Supreme Court and national-security litigation—persuaded me to press the matter.  I never imagined that the public editor, Clark Hoyt, would somehow see fit to go out of his way to attack me—even as he validated the heart of my complaint.

 

In this part, I am going to address several assertions made by Hoyt.  Given Hoyt’s bizarre attack on me in the pages of Sunday’s New York Times, I think it appropriate to demonstrate the lack of merit of all his charges.

 

Let’s start with some background.  Hoyt states early on that I “take[] frequent shots at Greenhouse.”  Well, let’s see.  In the 32 months that I’ve been blogging on Bench Memos, I’ve written—apart from the several posts in which I address Greenhouse’s conflict of interest—a grand total of 15 posts that include her name (out of a total of more than 1000 posts).  (I’m relying on the Bench Memos search engine for this data.) 

 

In four of these—on the partial-birth abortion case, on her gross mischaracterization of Justice Thomas’s 1992 dissenting opinion in Hudson v. McMillian (see This Week for Feb. 25, 1992), on the number of female law clerks, and on a recent oral argument in an age-discrimination case—I criticize Greenhouse’s biased reporting. 

 

Two posts (This Week for Jan. 9, 1947 and here) play off her Radcliffe speech in which she recounted a “little crying jag” at a Simon and Garfunkel concert and complained about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.”  One post presents her Tina Brown-like reflections on Chief Justice Roberts’s seizure.  One post discusses her unusual behavior towards another Supreme Court journalist.  And one post highlights her inadvertently damning assessment of Justice Ginsburg’s grandstanding.

 

One discusses, and another one briefly refers to that discussion of, her summary of the Supreme Court’s 2006-2007 term.  Two (here and here) make passing reference to Greenhouse’s biography of Justice Blackmun; one other notes in a parenthetical an odd citation to her; and one post, on the heels of the partial-birth abortion post, merely has a title (“Worse than Greenhouse”) assessing a New York Times editorial. 

 

In sum, apart from the conflict-of-interest posts, I’ve written 10 or 12 posts over a period of nearly three years that are critical of Greenhouse.

 

Now let’s turn to Hoyt’s charges.

 

1.  Hoyt asserts that my supposedly “increasingly intemperate and personal attacks …. feel more like bullying.”  Let’s unpack this.

 

a.  Hoyt’s charge that my posts are “intemperate” would suggest to the trusting New York Times reader that I’m spewing expletives and rage.  I don’t expect everyone to share my sense of humor or my sensibilities, but I’d be surprised if any fair-minded person who actually reads my posts on Greenhouse finds them “intemperate”.  They’re certainly more temperate than a lot of New York Times editorials.

 

b.  I find equally puzzling Hoyt’s charge that my posts present “personal attacks”.  Every one of my posts about Greenhouse relates to her performance in her capacity as a journalist.  Perhaps he is suggesting that I resort to ad hominem (or, if you prefer, ad feminam) criticisms of Greenhouse.  But he can likewise muster no evidence for that charge. 

 

c.  Hoyt’s assertion that my criticisms are “increasingly intemperate and personal” would suggest to the reader that he has carefully studied my posts.  Perhaps I should be flattered by the attention, but I see no evidence that it’s true.  Nor could Hoyt possibly document the pattern he alleges. 

  

d.  Who, then, is bullying whom?  If Hoyt were serving as the “readers’ representative,” his interest would be in assessing the merits of complaints, not in attacking those who present the complaints.  Instead, every indication is that he’s serving as a company man.   He doesn’t like the fact that I’ve criticized Greenhouse effectively, so he’s resorting to the pages of his powerful paper to try to slap me down. 

2.  Hoyt charges me with a “partisan” assault on Greenhouse.  If the word “partisan” is to be anything other than a mindless pejorative that someone uses to refer to someone else who holds principles that he opposes, it surely must describe someone who favors party over principle and who applies principles selectively to benefit favored parties.  Hoyt can’t offer any evidence that I am “partisan” in this sense.  But evidently he means merely that I’m conservative.

Tags: Whelan

Response to NYT’s Public Editor on Greenhouse Conflict—Part 2



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In his column, public editor Clark Hoyt presents, with very little commentary and only the softest of indirect criticism, the peculiar views of Greenhouse and her editors on her conflict of interest. 

Let’s begin with Greenhouse.  Greenhouse finds it significant that “her husband does not represent any prisoners.”  “There is to my mind,” she says, “a significant difference between representing a party in a case and taking a position on an issue raised by a case.”

As I understand it, Greenhouse is drawing a bright line between cases in which her husband is counsel for a party and cases in which he takes part as counsel for an amicus (or in which his nonprofit alter ego, the National Institute of Military Justice, is an amicus).  It would be good if she said so plainly, for her reference to “taking a position on an issue raised by a case” dramatically understates the breadth of the amicus briefs that her husband and NIMJ filed in Hamdan and Boumediene.

Perhaps there is a serious argument for the line that Greenhouse is drawing, but I don’t see it—and she doesn’t try to spell it out.  One can readily understand that an actual party has a greater and more concrete interest in a case than an amicus.  (That wouldn’t mean, though, that the amicus itself doesn’t have an interest sufficient to trigger conflicts).  But no such difference would seem to exist between the interests of counsel for the actual party and the interests of counsel for the amicus.  Whether the interests are financial, reputational, or ideological, it’s far from clear that there’s generally any meaningful difference among the interests of counsel.  In any event, Greenhouse can’t explain how her husband isn’t meaningfully involved, for purposes of conflict rules, in the cases in which he takes part, and Hoyt in the end soundly rejects her position—“Greenhouse is writing about something in which her husband is a player”—even if he does so in a way that might escape the notice of some readers.

Now for the editors.  Dean Baquet calls the conflict “abstract” and the role of Greenhouse’s husband in the cases minor.  But the actual conflict, far from being abstract, is a concrete and particularized instance, and (again, as Hoyt in the end determines) her husband’s role plainly suffices to create a conflict.   

Jill Abramson says that Greenhouse’s “professionalism over the years is unquestioned here” and that she “can wall off the views of her close friends and her spouse.”  But even if one sets aside that Greenhouse’s professionalism is seriously questioned outside the narrow confines of the Times’s news room, it’s odd to exempt Greenhouse from the conflict-of-interest principles that the Times so readily applies to others whose professionalism isn’t questioned.  The fact that Abramson conflates the significant difference between Greenhouse’s “close friends” and “her spouse” hardly lends credence to her judgment. 

Finally, executive editor Bill Keller objects even to Hoyt’s proposed website disclosure because (in Hoyt’s paraphrase) “it would appear to be a tacit rebuke in the face of a [supposed] partisan assault.”  It’s difficult to imagine that the Times would accept that as an excuse for anyone else not to do the right thing. 

Tags: Whelan

Response to NYT’s Public Editor on Greenhouse Conflict—Part 1



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As I previously noted, in his column in Sunday’s New York Times, Clark Hoyt, the paper’s public editor (its “readers’ representative”) addressed my complaint—see here and here (and, for more, here and here)—about Linda Greenhouse’s coverage of Supreme Court cases in which her husband has participated.  I’m going to discuss Hoyt’s column in this post and three or so subsequent ones.

Although it’s tempting to rush right away to refute Hoyt’s strange and baseless criticisms of me, it makes more sense to address a couple other topics first.  In this post, I examine Hoyt’s substantive analysis. 

At bottom, Hoyt agrees with my complaint that Greenhouse had a conflict of interest and that the Times did not deal with it properly.  In his words:  “Like it or not, the perception is that Greenhouse is writing about something in which her husband is a player—and The Times isn’t telling the public.”  But Hoyt makes some odd turns and ends up rather lost.  A quick overview:

1.  Hoyt assures the reader that he read each of Greenhouse’s articles in the two cases at issue (Hamdan, decided in 2006, and the pending Boumediene case) and that he found no instances of bias in her reporting.  It’s remarkable that Hoyt would imagine that he has the background knowledge necessary to detect any bias.  Indeed, the most important of Greenhouse’s articles to date—her morning-after report on Hamdan—is regarded by many as stunningly biased.  Here are the first four paragraphs of a September 2006 book review by law professor Peter Berkowitz (who, I’m pleased to note, is on the policy advisory board of the Ethics and Public Policy Center, the institute I head): 

In late June, Linda Greenhouse of the New York Times breathlessly reported on the front page, above the fold and under a big headline, that in the just-announced case of Hamdan v. Rumsfeld, the Supreme Court “shredded each of the administration’s arguments.” The decision–which held that, as organized, the military tribunals the Bush administration had created to try unlawful combatants seized on the battlefield in Afghan istan, were contrary to federal law and a provision of the Geneva Conventions–was, Greenhouse gushed, “a sweeping and categorical defeat for the Bush administration.”

 

Indeed, she proclaimed, the decision was a “historic event, a definitional moment in the ever-shifting balance of power among the branches of government that ranked with the court’s order to President Nixon in 1974 to turn over the Watergate tapes or with the court’s rejection of President Harry S. Truman’s seizing [in 1952] of the nation’s steel mills.”

 

Never mind that the Court had not questioned the government’s right to detain Salim Ahmed Hamdan, allegedly Osama bin Laden’s driver and bodyguard, without charge or trial, as an unlawful combatant, until such time as the conflict between the United States and al Qaeda comes to an end. Never mind that, in a paragraph-long concurring opinion, Justice Breyer emphasized that much, if not all, of the military tribunal procedures designed by the Bush administration would pass legal muster if explicitly authorized by Congress. Never mind that the Court’s opinion commanded only a narrow five-justice majority. And never mind that Justices Scalia, Thomas, and Alito each authored powerful dissents that elaborated serious objections to which the majority’s principal legal arguments are exposed. (Chief Justice Roberts did not participate in the case because, as judge on the D.C. Court of Appeals, he joined the opinion, which Hamdan reversed, upholding the administration’s military tribunals.)

 

What was truly remarkable about Greenhouse’s performance–her lengthy article was not an op-ed column or piece of “news analysis” but a news story of the sort customarily intended to provide a dispassionate and well-rounded account of the facts–was the omission of a single reference to the features of America’s national security situation that motivated the Bush administration to turn to the use of military tribunals. In this failure to put national security considerations into the balance, let alone give them their due weight, Greenhouse and her editors at the Times typify the complacency and shortsightedness in thinking about constitutional rights and the war on terror that Judge Richard Posner’s trenchant new book seeks to correct. 

So much for Greenhouse’s lack of bias.  And so much for Hoyt’s criticizing me for stating (in what he labels “a slippery innuendo”) the impossibility of separating any bias resulting from her husband’s role from the broader political bias that pervades so much of Greenhouse’s reporting. 

2.  In one of the oddest aspects of his column, Hoyt—the supposed “readers’ representative”—maintains that it is the “constant partisan assault” on news media and the low public faith in them, rather than the duties owed trusting readers, that ought to shape how newspapers deal with conflicts of interest.  If it weren’t for all those conservative meanies, readers could be kept in the dark.

3.  Hoyt declares his view that Greenhouse shouldn’t be barred from reporting on cases in which her husband is taking part.  There may well be persuasive arguments in support of that position, but Hoyt doesn’t provide them.  It’s enough for him that Greenhouse is supposedly the best that the New York Times has to offer.  But I’m confident that the paper has plenty of other reporters who could competently fill in for her.

4.  Hoyt (soundly) says he would have preferred that editors revisit from time to time how to deal with Greenhouse’s conflict.

5.  Hoyt opines that the Times “should have clued in readers” about the fact that Greenhouse was reporting on cases in which her husband participated.  It’s not clear, though, how much of a clue he thinks readers should be given.  He says that the Times “should systematically disclose more” information about its reporters’ conflicts, but he thinks that the website biographies are the place for such disclosures.  If disclosure is an appropriate remedy for conflicts of interest, readers will be sure of receiving that disclosure only if it accompanies the very article that presents the conflict.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of January 21



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Roe v. Wade and other pro-killer intrusions on representative government, Souter’s emergence, Kerry’s Davos-led filibuster, and Ginsburg’s loneliness:

 

Jan. 22      1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings.  In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion.  Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

 

Jan. 23      1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene.  After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”

Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that (as Justice Scalia’s dissent aptly summarizes it) forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.”  (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)

1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct.  Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence.  Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.” 

Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994.   She remains on the Eleventh Circuit, where she has continued her malfeasance.
 

Jan. 24      1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit.  In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.  Deploying his full arsenal of clichés, Teddy Kennedy rails against Souter’s Supreme Court nomination.  His efforts, alas, prove unsuccessful.

 

Jan. 26      2006—From the ski slopes of Davos, Switzerland, aristocrat and billionaire-by-marriage John Kerry panders to the faux-populist sentiment of the Left by calling for a filibuster of Supreme Court nominee Samuel Alito, who, Kerry fears, might actually believe that the Constitution leaves some important issues to the people to decide through their elected representatives.                  

2007—Continuing her practice of hiding behind sexist stereotypes when they suit her, Justice Ginsburg laments being “all alone on the court” a year after Justice O’Connor’s retirement, and she asserts that she and O’Connor “have certain sensitivities that our male colleagues lack.”  Ginsburg garners the Weekly Standard’s sympathies.


Perhaps Ginsburg is just emoting publicly about how lonely she is.  But it seems more sensible to read her comments as clamoring for the next Supreme Court appointment to be a woman or as criticizing the effect that Justice Alito’s replacement of O’Connor is having on pending cases.  Neither would seem becoming of a justice. 

 

For an explanation of this recurring feature, see here.

    

Tags: This Day in Liberal Activism

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