Bench Memos

Law & the Courts

NYT’s Cheap Whack at Louisiana Solicitor General Elizabeth Murrill

In the course of an oh-so-predictably tiresome New York Times house editorial on the Supreme Court’s abortion ruling in June Medical Services v. Russo, I was very surprised to run across this cheap whack at Louisiana solicitor general Elizabeth Murrill:

Another factor that’s nearly certainly at play here is that the lawyer who argued for Louisiana during oral arguments in March, State Solicitor General Elizabeth Murrill, is widely believed to have bungled the job, answering questions so ineptly that she gave the chief justice little to work with, even if he had been inclined to side with the court’s other conservatives.

The editorial goes on to contend that “the rights of millions of women hinged in part on someone having a bad day in court.”

I attended the oral argument in the case—more precisely, I ended up listening to the argument in the lawyers’ lounge—and Murrill’s oral argument struck me as well within the ordinary range of oral arguments at the Court. I’ve inquired of a couple of people who were in the courtroom, and their reaction was the same as mine. To be sure, the case was an especially difficult one to argue, both because it involved a complicated factual record and because Murrill faced a barrage of hostile questioning from the liberal justices. As is often the case, there is surely room for critics to engage in hindsight second-guessing of her argument. But the editorial board’s slam of Murrill strikes me as very unfair.

Note that the hyperlinked support for the editorial’s claim that Murrill is “widely believed to have bungled the job” is a single Slate piece by Mark Joseph Stern. Consistent with his usual level of propaganda, Stern contended that Murrill “lied” and made “falsifications of the record.” But a careful parsing of his charges shows that he was faulting Murrill for pushing back on the debatable inferences and characterizations of the record that the liberal justices were advancing as part of their attack on the favorable Fifth Circuit decision that Murrill was defending.

Why did the NYT editorial board go so strangely out of its way to disparage Murrill? I’ll hazard a conjecture. The editorial board presents itself as “a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values.” Foremost among those values is a commitment to unrestricted abortion as a supposed protection of (in the words of the editorial) “the bodily autonomy of American women.” That a highly accomplished female attorney like Murrill would vigorously defend Louisiana’s law (as her job as state solicitor called for her to do) threatens the progressive fiction that all intelligent and educated women must be pro-abortion. Murrill must be punished for betraying the Sisterhood.

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