Far From Sober

Published January 23, 2008

National Review Online

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.

Bazelon and Lithwick contend that Greenhouse “garners unwarranted attacks” because she’s earned the “status” of “the voice on the court that matters most in the national press.” Well, that’s one theory. Another theory is that in the pre-Internet age Greenhouse was able to get away with a lot of sloppy and biased reporting, and she and her ideological allies don’t like the fact that she now must face up to responsible criticism. The best way to assess the competing theories would be to have careful examination of the complaints made against Greenhouse’s reporting. So it’s telling that Bazelon and Lithwick instead resort to baseless ad hominem attacks and to (literally) catty comments about “right-wing kitty cats” — and it’s especially telling that they urge the New York Times not to take seriously complaints about her reporting.

Bazelon and Lithwick credit Hoyt’s “concession” that I am a “bully who is prone to ‘increasingly intemperate and personal attacks on Greenhouse.'” What Hoyt has made is a charge, not a concession, and as I have shown, that charge is entirely baseless. But Bazelon and Lithwick don’t call their readers’ attention to my thorough refutation, even though they are plainly aware of it, as they link to it in supposed support of their claim that my attacks on Greenhouse are “tireless”. (Ah, yes, 10 or 12 critical posts, apart from the current matter, in nearly three years. That’s “tireless”?)

Bazelon and Lithwick claim that I am “[u]nable to point to any actual bias” in Greenhouse’s reporting on the cases in which her husband has participated. That is not true (see Part 1 of my series, where I quote a devastating critique of Greenhouse’s account of the Hamdan decision). Nor is it meaningful: The very point of conflict-of-interest rules is to identify those situations in which partiality should be conclusively presumed, and situations involving spouses are routinely and understandably recognized to be leading instances.

Bazelon and Lithwick contend that “Whelan has slimed both of us, too.” In sole support of their claim that I have “slimed” them, they link to this essay of mine that exposed a wildly misplaced attack by Bazelon on a 1984 Justice Department memorandum written by then-DOJ attorney Samuel Alito. In the heat of the Alito nomination battle, Bazelon had ample reason to contest my critique — if she could have. So far as I’ve been able to tell, she didn’t do so then, and she hasn’t done so in the more than two years that have passed since. And she and Lithwick don’t do so now. Evidently, the not-so-tiny distinction between a meritorious critique and a meritless one escapes them.

As for Lithwick, that essay of mine merely referred to, and linked to, “what Eugene Volokh charitably described as Dahlia Lithwick’s ‘rather overheated criticism’ of Alito on the day of his nomination.”

In short, Bazelon and Lithwick offer zero evidence that I have “slimed” them.

Bazelon and Lithwick try to confuse the underlying conflict question by conflating it with distinct recusal questions faced by Justice Scalia and Justice Thomas. None of those questions involved participation by a spouse (or by the spouse’s institutional alter ego) in a proceeding before the Supreme Court, and it’s difficult to imagine that any justice wouldn’t disqualify himself or herself in such a circumstance.

Bazelon and Lithwick also claim that they “defended” Scalia on his decision to take part in the energy policy task force case, but they curiously provide no link to their supposed support.* Here’s what Lithwick had to say on that matter in one essay:

Justice Scalia should step aside in Duckgate, regardless of what’s in his heart, because it’s a terrible mistake — especially in a landmark case about cronyism and special influence — to allow the appearance of cronyism and special influence to taint what must be a completely fair decision.

A second Lithwick essay is more oblique, but I don’t see how anyone would read her description of Scalia’s “astonishing 21-page memorandum” — “astonishing” because “deeply felt, pained, and virtually unprecedented” — as a defense of his decision not to recuse. Perhaps Lithwick has written such a defense, and perhaps Bazelon has, too. (I couldn’t find anything in a very quick search.) But is it too much — is it bullying? — to expect that Bazelon and Lithwick might provide actual support for their positions?

It’s no wonder that Bazelon and Lithwick object to sobriety.

— Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog.

*  Following the publication of this essay, Bazelon and Lithwick added a link, but the linked article — an essay by Lithwick — doesn’t support their claim to have defended Scalia’s decision not to recuse in the energy policy task force case.  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.

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