Ed Whelan's Response to New York Times's Public Editor

Published January 22, 2008

Bench Memos

When I sent my complaint about Linda Greenhouse's conflict of interest to the New York Times's public editor (or “readers' representative”), 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.  But that's exactly what he did in Sunday's paper.  Quite a revealing performance by Hoyt.  Here are my initial responses on Bench Memos.  

Response to NYT's Public Editor on Greenhouse Conflict–Part 1   

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' c
onflicts, 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.

* * *

Response to NYT's Public Editor on Greenhouse Conflict–Part 2   

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. 

* * *

Response to NYT's Public Editor on Greenhouse Conflict–Part 3   

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.

* * *

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

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.)

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