Bench Memos

NRO’s home for judicial news and analysis.

He Said It


It is incontrovertible. Multiple sources confirm that they remember it the same way. And they are not John Fund’s source, as Novak reports.

Maybe McCain forgot. Other people didn’t. They, and many Americans, are genuinely concerned about this issue. As my post on Alito testimony reflects, this was indeed an issue in his confirmation. That Alito was purportedly a “conservative ideologue” was a myth cooked up by liberal antagonists trying to bring down his nomination. Which is why so many people from across the political spectrum who knew then-Judge Alito came forward to refute it.

McCain, long after the fact, repeated what the Ted Kennedy / Moveon / People for the American Way crowd said about Alito. We don’t know what to make of it, because it’s as outlandish as if McCain had said, “As President, I will not send a man to the moon, because the moon wears its green cheese on its sleeve.”

It makes no sense. But he said it. Whether he remembers the specific comment or not, he did say it. So we need to try to understand it, or at least get some pretty detailed commitments from Senator McCain going forward. I hope he, and others, will understand why this is necessary. A President who confuses adherence to judicial restraint with conservative political decisions is very confused about how to select judges. It is one thing to vote for, and even praise, judges some other chief executive has picked (especially when it would be political suicide not to). It is another to discern good Supreme Court appointments. Just ask Ronald Reagan, or George Bush (pere or fils, take your pick).

A friend just reminded me what Bill Buckley once told him about a conversation Buckley had, either with President Eisehhower or his chief of staff, Sherman Adams, looking back on the administration.

“Why weren’t you more conservative when you were in the White House?” Buckley asked. The answer: “Why didn’t you force us to be?”

Pearl of wisdom for the day from WFB.

Tags: Long

McCain and Alito: “conservatism on his sleeve”...not.


Senator John McCain, as recently reported and discussed here and on The Corner, has said privately that he would not appoint jurists like Justice Samuel Alito, because he ”wears his conservatism on his sleeve.”

To refresh recollections:  many of Justice Alito’s former law clerks, fellow Article III judges, and others — a good number of whom were liberal Democrats — testified during his Senate confirmation to the exact opposite proposition:  that Justice Alito did not wear any political ideology or convictions “on his sleeve.”   Just a sampling of that testimony:   *  Katherine L. Pringle (former law clerk, “committed and active Democrat”):  “I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice. . . . Judge Alito did not, in my experience, ever treat a case as a platform for a personal agenda or ambition. Rather, his decisions are limited to the issue at hand. They demonstrate an effort to interpret honestly, and faithfully apply, the law to the parties that seek justice before him . . . .”   *  Jack White (former law clerk, member of the NAACP and the ACLU):  “Working for Judge Alito, I saw in him an abiding loyalty to a fair judicial process as opposed to an enslaved inclination toward a political or personal ideology. . . . What I found most intriguing and particularly exceptional about Judge Alito’s judicial decision-making process was the conspicuous absence of personal predilections. . . . After a year of working closely with the judge on cases concerning a wide variety of legal issues, I left New Jersey not knowing Judge Alito’s personal beliefs on any of them. The reason I did not know Judge Alito’s personal beliefs was that the jurist’s ideology was never an issue in any case he considered while I was in his chambers. In fact, it is never an issue in any case. My fellow former co-clerks have agreed and communicated this notion in a letter we provided to this committee.”

*  Judge Edward Becker (Third Circuit Court of Appeals):   ”The Sam Alito that I have sat with for fifteen years is not an ideologue. He is not a movement person. He is a real judge, deciding each case on the facts and the law, not on his personal views whatever they may be. . . . Sam is said to have certain ideological views, expressed in some twenty-year-old memos. Whatever these views may have been, his judging does not reflect them. . . . Sam is faithful to his judicial oath.”   The Honorable Anthony Scirica (Chief Judge, Third Circuit Court of Appeals):  “Judge Alito approaches each case with an open mind, and determines the proper application of the relevant law to the facts. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. He does not reach out to decide issues not presented in the case. His personal views, whatever they might be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind.”   *  Mr. Stephen L. Tober (Chairman, American Bar Association):  “The Standing Committee has unanimously concluded that Judge Alito is “Well Qualified” to serve as Associate Justice on the United States Supreme Court. His integrity, professional competence, and judicial temperament are indeed found to be of the highest standing.

Judge Alito is an individual who, we believe, sees majesty in the law, respects it, and remains a dedicated student of it to this day.”

*  Charles Fried (Former United States Solicitor General, who worked with Justice Alito in that office from the latter part of 1984 until he left the office at the end of 1985):  “Alito was highly respected. Nor do I recall anyone bothering to mention that he had any particular political coloration. In preparation for this testimony I have checked my recollection with several alumni of the office from that time and they confirm what I report here.”  

Tags: Long


McCain and Alito


Robert Novak’s column today strongly supports the reporting of John Fund on Monday that John McCain did, at least last April, think ill of Samuel Alito as a Supreme Court nominee.  Strongly supports Fund’s story?  What am I saying?  Novak seems to have the goods locked up tight.  I withdraw my question to Wendy Long. (Thanks to Roger Clegg at The Corner for pointing out Novak’s column.)

Is the public McCain today ready to repudiate the private McCain of nine months ago?

Re: McCain and the Court


Wendy, I am not a McCain fan, and as evidenced below, I am not always up on the most current information.  But you write:

McCain says privately that he would not nominate more Sam Alitos to the Supreme Court, because McCain thinks Alito “wears his conservatism on his sleeve.” 

I understand this is what John Fund reported in a WSJ piece on Monday.  But I think I have also seen since that story appeared that McCain denies having said this.  Is it now really certain that he did say it?

McCain and the Court


[Full disclosure:  I'm on Governor Romney's "Courts and the Constitution" and "Faith and Values" committees.]   McCain publicly praises Chief Justice Roberts, and Justices Scalia, Thomas, and Alito.  Yes, he voted to confirm Justice Alito.  But simply supporting a Justice for Senate confirmation is not the same as choosing one from the presidential perch in the West Wing, with trusted senior advisers and longtime friends like former Senator Warren Rudman whispering in one’s ear.   Yes, Warren Rudman.  The man who gave us David Souter.   In McCain’s “maverick self” moments, in private discussions, he has given us reason to believe that he will listen to his dear old friend — and current key adviser — Warren Rudman.  McCain says privately that he would not nominate more Sam Alitos to the Supreme Court, because McCain thinks Alito “wears his conservatism on his sleeve.”  This statement is preposterous, because nothing could be further from the truth about Justice Alito.  At the same time, no one ever accused either McCain or Warren Rudman of “wearing his conservatism on his sleeve.”   It is not overstatement to say that the Supreme Court and the future of the Constitution are at stake in the next election.  Republicans must win, yes.  But the right Republican must win.  Because there’s not much difference between a David Souter and a Ruth Bader Ginsburg.  Republicans can nominate bad Justices, too.  Earl Warren, William Brennan, Harry Blackmun, David Souter….the list goes on.     When it comes to Constitution and the Supreme Court, unfortunately, McCain was –and still is — the weakest of the GOP presidential field.  There are many reasons why.  To overcome them, McCain would have to shed his attachments to key advisers, repudiate his prior unconstitutional legislative acts, and come clean about private comments that he’s had a chance to reflect upon and would like to change.  Even if he does all this, it will be hard for conservatives to trust him to uphold the Constitution — which the President, not just the Supreme Court, has an independent obligation to do — and to appoint solid Supreme Court Justices who are committed to principles of judicial restraint and originalism.    McCain could announce a committee of judicial conservatives he promises to rely upon for suggestions of Court nominees.  Maybe announce who his White House Counsel and Attorney General would be.  They will all have to be trusted conservatives, to overcome the specter of Warren Rudman whispering in the other ear.  And the specter of a presidential “litmus test” for justices on support for McCain-Feingold.    


Re: McCain and Judges


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


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

McCain and Judges


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


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


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.

Walter Dellinger’s Retraction


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


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


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


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


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?


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


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?


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


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


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


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