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January 26, 2008

Those Big *Brutes*!!!!

080122_JUR_greenhouseTN.jpgThey're baaaaack....

... and this time, they're tag teaming each other. The Editorial Staff's fave Team Of Crack Young Legal Analysts, Emily ("Why *Shouldn't* Jose Padilla Turn Qualified Immunity On Its Head?") Bazelon and The Perpetually Entertaining Dahlia Lithwick have trained their rapier-like wits upon that big bully, Ed Whelan and his defenders:

It took some kind of amazing footwork for Clark Hoyt, the New York Times public editor, to pull off what's turning into an annual ritual: dragging the paper's multiple-award-winning Supreme Court correspondent out to the woodshed for appearing to have opinions in her private life or—even worse— sharing a toothpaste tube with those who do.

This weekend's iteration of Linda isn't THAT bad starts with Hoyt's concession that M. Edward Whelan III—whose online attacks on Greenhouse at National Review Online are tireless—is a bully who is prone to "increasingly intemperate and personal attacks on Greenhouse." But then Hoyt gives Whelan—and other bloggers inclined to trashing professional reputations—exactly what they want: He takes the bully seriously, by airing and evaluating Whelan's claim that the Times is guilty of bias because of Greenhouse's reporting on cases involving the Guantanamo detainees. Her sin? She is married to Eugene Fidell, a nationally recognized expert on military law who has filed friend-of-the-court briefs in earlier stages of these cases, and similar ones before the court. In Whelan's hands, this fact—which Greenhouse told her bureau chief—becomes the latest addition to a lengthy dossier about Greenhouse's unfitness to report Supreme Court news.

Whelan didn't point to any concrete problem with Greenhouse's handling of these cases. That should be easier to do than with almost any other reporter, given that Greenhouse relies primarily on court filings and oral arguments that are publicly available in their entirety, as Yale law professor Judith Resnik points out to us. Unable to point to any actual bias, Whelan resorts to the petulant claim that the effect of Fidell's involvement in the detainee cases "would be impossible to separate … from the broader political bias that pervades so much of Greenhouse's reporting." And so Hoyt rightly charges him with peddling "slippery innuendo."

First of all, Whelan's beef with Greenhouse isn't that she "dares to have opinions". This is, like so many of our darling duo's other complaints, frankly silly.

Greenhouse can have all the private opinions she wants. What Whelan has objected to is her propensity to inject her political beliefs into her coverage of Supreme Court news. As to the second (overwrought) charge, Greenhouse is not being "attacked" for sharing a toothpaste tube with her husband, but for failing to disclose the conflict to readers of the Times. Let's face it: if there is no conflict, why make a fuss about disclosing the fact that her husband is suing the government on behalf of Guantanamo detainees? Readers of the Times will (if this is truly not an issue) simply say to themselves, "Who cares?" and move on. Greenhouse has, in this case, done the right thing, honor has been served, and transparency has been preserved.

The fact is, however, that it does strain credulity more than just a tad to believe a reporter will report with complete objectivity on cases her husband is currently litigating. And when one finds that not only has Greenhouse reported on these cases without disclosing the connection, but she passionately uses non-neutral language in her reporting (and surprise! she just happens to take the very same position her husband is pleading in court! What are the chances?) our credulity is stretched to the breaking point.

And as for the question of innuendo, that is a charge more appropriately leveled at Ms. Bazleton and Lithwick than at Mr. Whelan, who was (at least) quite direct in his allegations:

Whelan's contained a straightforward accusation: that a pervasive bias marks Greenhouse's work. What's slippery about that? Bazelon and Lithwick say that Whelan has "slimed" them in the past. What they appear to mean is that he has criticized them, and pointed out their inaccuracies, when they went after, e.g., Samuel Alito. You could just as easily say that they "slimed" Alito. And since Whelan's criticism of them has gone unrefuted, their criticism of him meets the definition of "slippery innuendo" better than anything he has said.

One more thing. Why do Bazelon and Lithwick imagine that conservatives pick on Greenhouse? She is, on their telling, a terrific and unbiased reporter. (When she called Chief Justice Rehnquist and Justices Scalia and Thomas "the Court's far right," for example, that was just straight news reporting.) Perhaps, in their view, that is what conservatives dislike about her: They want someone to slant the news their way. But if that were the case, wouldn't there be liberals who attacked her for not being left enough? Yet somehow that almost never happens: Liberals seem happy enough with her work. Is their theory that conservatives are just less fair-minded and more paranoid than liberals? That's quite a defense: We're not biased against you; you're just lunatics.

As to the question of bias in Ms. Greenhouse's coverage of SC news (not opinion journalism, mind you) the half vast editorial staff defers to Peter Berkowitz, a law professor and member of advisory board of the Ethics and Public Policy Center

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 Afghanistan, 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."

Wow. A "sweeping and categorical defeat". Let's take a look at the decision in detail to see what prompted that pronouncement:

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.

The sweeping and categorical nature of the Bush administration's humiliation is unquestionable. Just ask Ms. Greenhouse.

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.

That had to hurt.

Never mind that the Court's opinion commanded only a narrow five-justice majority.

As Ms. Greenhouse reminds us, this was unequivocably a unanimous judicial smackdown. Sweeping in its universal condemnation.

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.)

In other words, we may well infer that, had he not felt it necessary to recuse himself, we may have seen an outcome that was less than... dare we say it?


Of course Ms. Greenhouse didn't feel that any of this was information readers of the Times 'needed to know'. Must be one of those professional journalist thangs - we wouldn't understand, but we should trust in their judgment and not dare to question our betters.

Misses Bazelon and Lithwick evidently agree. They are, as Shakespeare's Henry V opined, the modern makers of manners. One imagines them looking raptly into the eyes of Ms. Greenhouse and sighing deeply:

O Linda, nice customs curtsy to great queens.
Dear Linda, we cannot be confined
Within the weak list of a country's fashion:
We are the makers of manners, Linda;
And the liberty that follows our places
Stops the mouth of all find-faults;

Nice work, if you can get it.

Posted by Cassandra at January 26, 2008 08:31 AM

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Posted by: JHD at January 26, 2008 09:16 PM

I'm working on it, JHD. The script keeps timing out.

Posted by: Cassandra at January 27, 2008 01:17 AM

You are trying to silence Ms. Greenhouse by discouraging her from using toothpaste, which will hasten any potential tooth decay, and will cause her to spend excess hours in a dental chair, and correspondingly fewer hours opinionating. You are a tool of BusHitlerBurton.

Posted by: MathMom at January 27, 2008 12:47 PM

Help me understand this. Linda Greenhouse writes about the Supreme Court for the New York Times. Her husband is an attorney (and an expert in miltary law!) who files amicus briefs in support of persons appealling the legality of certain actions taken by the Bush administration. Ms. Greenhouse reports about these very Supreme Court appeals in a manner that, in the opinion of some, is less than completely objective. ("Sweeping and categorical" are exessive terms generally reserved for, well, things sweeping and catagorical, not 5-3 decisions where 4 of the majority join in a separate, partially concurring opinion.) Nevertheless, her works appears, not on the editorial page, but on the front page as "news." She also apparently shares her toothpaste with a man of a different last name, although why this particular fact is the least bit important currently escapes me.

Mr. Whelan, a person who objects to what he perceives to be political bias in Ms. Greenhouse's "news" reporting, writes an undisguised opinion piece on the subject. Mr. Hoyt, the Public Editor of the New York Times, responds to Mr. Whelan's piece by acknowledging that Ms. Greenhouse's objectivity might, to those less familiar with her many, many awards, be troubling even to some editors, and then calls Mr. Whelan a "bully" for saying so.

Ms.'s Bazelon and Lithwick express shock that Mr. Hoyt should even give Mr. Whelan "and other bloggers inclined to trashing professional reputations" the courtesy of a public name-calling. Doesn't he know how many awards she's won? (Disclaimer: Ms.'s Bazelon and Lithwick husbands both like thai food.) Furthermore(aka "also also"), the bully Mr. Whelan has previously expressed unflattering opinions of both Ms. Bazelon and Lithwick. Who but a right-winger would disparage such heavy-weight prose as theirs? "The Times needs to quit fueling the Greenhouse gases that seem to burst into flame with more and more frequency. Lots of heat. No light." Plainly, Mr. Whelan is a common crank unworthy of the double-syllable name-calling lavished upon him by Mr. Hoyt.

So... what about Ms. Greenhouse? Well, given the journalistic deadpan ofher most recent news report on the Supreme Court, it appears as though the results of Ms. Greehouse's trip to the woodshed were both sweeping and catagorical.

Posted by: spd rdr at January 27, 2008 02:33 PM

It is not for mere mortal like you to understand Ms. Greenhouse, mr rdr.

Just KNEEL BEFORE HER and worship at the gates of her awesome legal reporting.


Posted by: Cassandra at January 27, 2008 03:41 PM

Oh, I understand Ms. Greenhouse, Cass. What I don't understand is all the fuss about bloggers inclined to trashing professional reputations coming from bloggers appearently similarly inclined. That and the thai food reference.

Posted by: spd rdr at January 27, 2008 04:26 PM

Does this mean you're not going to kneel before me????


And here I was getting my toothpaste out and everything.

Posted by: Linda Greenhouse's House of Thai at January 27, 2008 05:18 PM


That came out wrong. But it is still funny.

Posted by: Linda Greenhouse's House of Thai at January 27, 2008 05:19 PM

Deconstruction music, Maestro, if you please.

"The Times needs to quit fueling the Greenhouse gases that seem to burst into flame with more and more frequency. Lots of heat. No light."

After multiple readings of that sentence, I confess to being completely at sea as to how these nice ladies ever found their way into such a universally-respected magazine as, um... Slate. Are the writers implying that clouds of flamable gases eminate from Ms. Greenhouse? How is the Times responsible? Is it force-feeding her bean burritos? Are are these gases spontaneously "bursting into flame?" Or just "seeming" to? That might explain the appearent lack of observable light, but how about the "lots of heat?" And does "with more and more frequency" mean the same thing as "more often?" Or are the writers attempting to describe an decrease in the wavelength (thus, an increase in the frequency) of the spectrum of light generated (or seemingly so) by these seemingly bursting flames?

Posted by: spd rdr at January 27, 2008 06:03 PM



Seriously spd, this is why I love to make fun of Ms. Lithwick. I used to feel embarrassed about writing about law... until I started reading her columns. She really is almost MoDope-worthy.

Post coming up :p

Posted by: Linda Greenhouse's House of Thai at January 27, 2008 06:06 PM

"Are are these gases spontaneously "bursting into flame?" Or just "seeming" to? That might explain the appearent lack of observable light, but how about the "lots of heat?"
In this age of relativistic carbon-offsets and Bhuddists sponsored nondescript 527 Fund Raising & Classified Missile Technology Gala's, I fear that the public does not realize just how serious a problem we have with excessive flatulence.

Oh! The Bovanity!

Posted by: Mr. Greenjeans slightly singed dairy cows at January 27, 2008 07:11 PM

Maybe the "Greenhouse gas" is because she doesn't really share a toothpaste tube with Eugene Fidell, nationally recognized expert on military law, but just needs to. Dragon breath, anyone?

Posted by: MathMom at January 27, 2008 10:37 PM

Big mean spirited poopy heads. Now, if you really want some unbiased news, full of objectivity, I suggest Scott Thomas of The New Republic.

Posted by: Cricket at January 28, 2008 08:43 AM