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Original Post:
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| Letting O'Connor off easy? |
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| Sat, February 10, 2007 |
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Slate's Emily Bazelon seems to think that Jan Crawford Greenburg pulled some punches in her book Supreme Conflict to play by the Supreme Court's unwritten rules for the press. One of Greenburg's certifiable scoops is O'Connor's revelation that she wasn't quite ready to retire, but did so when Chief Justice William Rehnquist pressured her to leave so that he could stay another year (only to die months later). It's from an on the record interview with O'Connor, who has since repeated the story to other reporters. In Bazelon's review of Greenburg's book in tomorrow's Washington Post, Bazelon points out that there's no way to fact-check this story, and she notes that Greenburg doesn't even ask more questions about why O'Connor went along with the idea. Bazelon concludes:
There's nothing wrong with this; Greenburg's reporting has brought out new information, and the rest of us are free to speculate about O'Connor's truthfulness and her thinking. Still, it's worth noting the trade-offs this sort of reporting entails -- in this case, perhaps, access in return for the decorous handling of O'Connor's disclosure -- especially in light of the court's guarded norms.
It's a valid point, though I think it's a bit of a leap to suggest that the only reason to take the story at face value is to avoid making waves at the court. Maybe Greenburg got confirmation -- say, other justices confirm that O'Connor told them of this at the time -- but it's on such deep background that Greenburg can't hint at the existence of the confirmation. Reporters must make deals like this all the time. Or maybe it struck her as true and she saw no reason to question it. Or maybe she was just thrilled to have a scoop and didn't look at it all that closely. There are potential flaws in all of these strategies or reasons. But at least they're less conspiratorial.
In any case, let's play O'Connor Followup. What would we ask her if we were tough as nails and not concerned with burning bridges with her or other sources? I'll start (good thing, since I'm probably just talking to myself anyway):
What's so awful about two vacancies occurring at once that it would change your retirement plans?
Rehnquist was an old friend, since your law school days. Does it make sense that you would accede to his wishes without question, even though you and everyone could see that he was dying? It's a little hard to believe you wouldn't push back.
Did you tell anyone about this at the time? Who? If not, doesn't that hurt your credibility, seeing as how Rehnquist made quite a remarkable request of you.
If Rehnquist kept a journal and it turns up one day, what would you expect his version of events to sound like? Wouldn't he put a different spin on what he was asking of you?
Others?
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Posted at 03:19 PM
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There are 2 comments to this post:
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| BeverlyMann commented: |
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| Over-hyped book; insignificant anecdote; media's fixation with Supreme Court trivia |
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My, my. All this debate about an interesting but insignificant anecdote in this ridiculously over-hyped book.
The anecdote is like most of the book itself: It offers nothing by way of hard fact about issues that actually matter, such as why the justices limit cert. grants to those that present conflicts among the federal circuits and to a few here and there that afford them the opportunity to advance a particular ideology (e.g., Fifth Amendment “takings” cases); why the Rehnquist Court almost never granted cert. petitions filed by state-court criminal defendants on direct appeal from the state-court appellate process, thus under modern habeas law effectively precluding these cases from setting constitutional-law precedent; why the justices routinely deny petitions, in both civil and criminal cases, that ask the Court to declare or acknowledge a particular constitutional right or interpretation of a federal statute or old Supreme Court authority yet suddenly grant a petition filed by a major corporation and major Republican Party stalwart (e.g. Exxon Mobil Corp., in Exxon Mobil Corp. v. Saudi Basic Industries Corp.) or by a criminal defendant (e.g., Charles C. Apprendi, Jr., in Apprendi v. New Jersey) whose underlying issue is a rightwing cause céleb'; and, perhaps most important of all, why so many justices believe that state courts, unlike state legislatures and state executive-branch officials, are exempt from the mandates of even the most explicit constitutional mandates and prohibitions, a precept that is at the heart of the neo-federalist ideology so aggressively advanced by several of the justices, unless of course the state court is violating one of the constitutional rights, such as freedom of religious exercise, that the ideological right elevates in importance above, say, due process of law.
Greenburg is a sycophant—or at least, as Bazelon notes, it serves her interest to play one. But then, so are so many other Supreme Court correspondents, who hang on every word uttered by justice when not on the bench, as though spoken by Moses, without vetting these comments for their actual news value. Greenburg’s book adds to the now-large body of trivia about the modern Supreme Court. Can some journalist with access to former Supreme Court law clerks willing to reveal the contents of cert. pool memos and a justice or two’s pre-conference memos, and who’s willing to explain to the public the significance of matters that the public does not already know about—i.e., the so-called hot-button issues such as abortion rights and gay rights—now write a book? And if one does, will that book get some media hype, too?
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Posted Wed, February 14, 2007 at 11:08 AM
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| lindagreenhouse commented: |
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| Letting O'Connor off easy? |
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I don't quite understand the implication that Jan Greenburg "pulled her punches" in reporting the O'Connor retirement story. Whether this was a "certifiable scoop" is another question, however. I discussed this matter with Justice O'Connor the day after Chief Justice Rehnquist died, and I reported it in the New York Times the next day, Sept. 5, 2005: "Justice O'Connor said that as the last term proceeded, she had expected the chief justice to arrive at a decision to retire. Hoping to retire herself, she awaited word from him because she did not want to create a second vacancy. Finally, she said, 'I asked him, and he told me he really wanted to go another year and thought he'd be OK.' " I received no hint in my conversation with Justice O'Connor that she felt "pressured" by Rehnquist to retire. She would go if he stayed, or she would stay if he went - nothing more complicated, mysterious, or nefarious than that. Of course, neither of them knew when they spoke about it that he would be dead within two months. / Linda Greenhouse
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Posted Sat, February 10, 2007 at 10:42 PM
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