ProPublica’s Journalism by Insinuation

Let’s start with the organization’s supposed blockbuster headline about Justice Thomas. “A “Delicate Matter”: Clarence Thomas’ Private Complaints About Money Sparked Fears He Would Resign.” The trusting reader might well expect that the story will include a report, even a second-hand or anonymously sourced one, that Thomas told someone he might resign because of money trouble. Someone must surely have used the phrase “delicate matter” in reference to Thomas’s financial straits and threatened resignation.

Wrong on both counts. The four reporters on the story unearth not a solitary soul who claimed, even off the record, that Thomas had ever said he would resign without additional income. The June 2000 memo in which “delicate matter” appears did not claim that Thomas was threatening to resign, although it did say that Justices Thomas and Scalia were “presumably” the most likely to leave for financial reasons. The main point of the memo is to figure out the best strategy for raising the pay of the justices: whether, for example, to push for a bill that raised their pay alone or raised it alongside salary increases for members of Congress and lower federal judges. That’s the “delicate matter,” not the specific question of how to address Thomas’s finances, which never even come up in the memo except by implication.

The body of the ProPublica article describes the memo as one of several “records from the time” and recent “interviews” that “offer insight into how Thomas was talking about his finances in a crucial period in his tenure.” The memo does not, however, say anything, even second-hand or third-hand, about how Thomas was talking about his finances.

What else does the organization have by way of such records and interviews? There’s a statement from an acquaintance of Thomas who says that the two of them had never discussed the justice’s finances. There’s an anonymous report from “one friend” of Thomas who says, “It was clear he was unhappy with his financial situation and his salary.” But that quote comes directly after ProPublica says that this was what Washington “chatter” held. The article does not claim that this friend was characterizing a private conversation with Thomas, rather than summing up the “chatter” he had heard. ProPublica also has financial records of Thomas — which indicate “how Thomas was talking about his finances” only in the sense of how he was filling out forms.

The best piece of evidence the quartet of reporters have is a former Republican congressman’s report that a conversation with Thomas about a pay increase for the justices and the possibility of multiple resignations from the court in its absence had him worried that Thomas might step down. The congressman does not, however, tell us much of what he recalls Thomas saying. Was Thomas making a veiled threat, in his opinion? The congressman doesn’t say. Perhaps the reporters didn’t press him on what made him worry; or perhaps he did not remember well enough to say; or perhaps the answer was deflationary.

The reporters tell us, accurately, that there was widespread, bipartisan concern at the time about judicial pay. We know Thomas never resigned, and neither did Scalia, who served until he died at age 79. We know that Thomas helped his own financial situation by publishing an autobiography in 2007, which reportedly earned Thomas a $1.5 million advance and justified it by hitting number one on the New York Times non-fiction best-seller list. (These facts undercut the story’s larger insinuation that Thomas turned to rich donors as a substitute for the income boost he didn’t get from Congress.) We have testimony from several people that in the 1990s, Thomas said he was going to serve on the Court until 2034. So far, we have no report from anyone that he ever told anyone otherwise.

We are all aware that reporters and media outlets are willing to exaggerate their stories, as are the activists who find those stories useful. ProPublica has crossed the line from hype to misleading the public.