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Original Post:
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| The forerunner to Greenburg's O'Connor scoop |
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| Sun, February 11, 2007 |
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I and many others have taken Jan Crawford Greenburg's reporting on the timing of Sandra Day O'Connor's resignation as a scoop. In my previous post I called it a "certifiable scoop." David Garrow in his LA Times review called it "Greenburg's most noteworthy achievement" and a "revelatory account of how Rehnquist, just two months before he died, effectively forced O'Connor to retire a year earlier than she had intended." Congressional Quarterly Supreme Court reporter Seth Stern, reviewing the book for the Christian Science Monitor, called it a "fresh insight." And Slate's Emily Bazelon, in her Washington Post book review, deemed it Greenburg's "juiciest bit."
Did we all err? The Times' Linda Greenhouse points out in a comment here that she reported the essence of the O'Connor/Rehnquist transaction way back on Sept. 5, 2005 (here's the full Times story, which requires a Times Select subscription. The relevant passage is in the 21st paragraph).
Clearly, I (more than the others, in the words I chose) overreached by assuming (without checking) that this was brand new. Just as clear, however, are the sharp differences in the amount of detail, emphasis, and interpretation each writer brings to her version of what O'Connor has to say. To Greenhouse, O'Connor simply retired first, once she realized Rehnquist planned to stay -- "nothing more complicated, mysterious, or nefarious than that," Greenhouse says.
Here's Greenburg's quite different take on it (from an excerpt of the book):
"I want to stay another year," Rehnquist told O'Connor. Years earlier, Rehnquist had vowed not to linger at the Court, that no man was bigger than the institution he served. Now, facing death, Rehnquist wasn't ready to leave a job that defined his life. . . .
Rehnquist was not ready to give up. But he then delivered a message she had heard before, this time with a stunning implication: "And I don't think we need two vacancies."
O'Connor, the trailblazing jurist who was arguably the most powerful woman in America, was caught off guard. Rehnquist's implication was clear: She must retire now or be prepared to serve two more years. Her opinions had determined the direction of the Court, reshaped American culture, and preserved the constitutional right to an abortion. But now Rehnquist, ravaged by cancer and desperately ill, was unilaterally deciding both of their fates. He would stay, and she should either step down now or be prepared to serve longer than she wanted.
I wouldn't call it a nefarious take on what O'Connor has to say. And I don't know which reporter got closer to the truth. But I do know that I'll be more careful about assuming facts not in evidence.
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Posted at 08:15 AM
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There is 1 comment 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 11:10 AM
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