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ROUND UP THE “UNUSUAL” SUSPECTS! A thought popped into Taylor’s head. No one bothered to fact-check: // link // print // previous // next //
WEDNESDAY, JUNE 3, 2009

He is his nominee’s keeper: This morning, the Post’s Philip Rucker compares two communities. Sonia Sotomayor grew up in one, Jeff Sessions in the other. We’re always sad when people build exclusionary frameworks like this:

RUCKER (6/3/09): If Sotomayor's America is the South Bronx in New York, then Sessions's is Hybart, Ala. The two locales couldn't be more different. Sotomayor chased her dreams as a Latina in the city projects, playing loteria, a card game, with neighborhood kids. She once bragged about her cultural taste in food as a young lady, eating such delicacies as pig intestines, pigs' feet with beans, and pigs' tongue and ears.

Sessions, meanwhile, came of age in a vast, bucolic land. He grew up in a modest country house and went hunting and fishing. He worked with his father around the general store the family owned. Every bit the good Alabama boy, Sessions became an Eagle Scout just before enrolling at Huntingdon College, a small Methodist school in nearby Montgomery.

Really? Those two locales “couldn’t be more different?” We’re always sad when people slide into such frameworks. Can we really not see any similarities? Oops. A few grafs later, Rucker offered this:

RUCKER: Sessions said the Hardy Boys and Nancy Drew books and the TV show "Dragnet" inspired him to become a lawyer. (Sotomayor, too, cites Nancy Drew novels as an inspiration.)

I see myself in others, Obama says. That said, our brains are hard-wired to accentuate tribal difference. We hope Sessions acquits himself well in his upcoming task. But of one thing we can be sure: The senator and the nominee have many things in common.

Can we see ourselves in others? Reading Rucker, we thought of a column written by Laura Ingalls Wilder in September 1921, presumably in the Missouri Ruralist. (Headline: “Are You Your Children’s Confidant?” From this book.) As she started, Wilder imagined herself two different ways. For the record, Wilder’s daughter, Rose Wilder Lane, was a well-known international journalist:

WILDER (9/21): A letter from my mother, who is seventy-six years old, lies on my desk beside a letter from my daughter far away in Europe. Reading the message from my mother, I am a child again and a longing unutterable fills my heart for Mother’s counsel, for the safe haven of her protection and the relief from responsibility which trusting in her judgment always gave me.

But when I turn to the letter written by my daughter, who will always be a little girl to me no matter how old she grows, then I understand and appreciate my mother’s position and her feelings toward me.

Many of us have the blessed privilege of being at the same time mother and child, able to let the one interpret the other to us until our understanding of both is full and rich. What is there in the attitude of your children toward yourself that you wish could be different? Search your heart and learn if your ways toward your own mother could be improved.

In the light of experience and the test of the years, can you see how your mother might have bene more to you, could have guided you better? Then be sure you are making the most of your privileges with the children who are looking to you for love and guidance.

Wilder could see herself two different ways. Can Sessions see himself in Sotomayor? Sotomayor in him? We’ll guess they see more than Rucker’s passage suggests. We hope each emerges enhanced from the discussions to come.

By the way: Watching tape last night, we saw our own mother in Nancy Reagan, tottering on Obama’s arm.

Special report: Broken trail!

Part 3—Round up the “unusual” suspects: How unimpressive is our most hapless elite? Consider part of the discussion on last Sunday’s Chris Matthews Show.

At issue was Judge Sotomayor’s decision in the New Haven firefighters case—the decision she reached as part of a unanimous three-judge circuit court panel. (The full circuit court voted narrowly, 7-6, not to reconsider this panel’s judgment.) The case has now gone before the Supreme Court. Smart money says the Court will reverse.

What follows is part of Sunday’s discussion, Helene Cooper and Mark Whitaker participating. The pundits seem troubled by a troubling thought: If the Supreme Court reverses the panel’s decision, won’t that mean Sotomayor was “wrong?”

MATTHEWS (5/31/09): OK. Mark and Helene, what happens if the U.S. Supreme Court reverses her decision at the appellate level and says, “No, this was an unfair case where there was some reverse discrimination against these white firefighters? You're wrong.” Can the Senate Judiciary Committee then smoothly go along and say, “Yeah, but we're putting you on the Court having your decision reversed?” This could well happen this time.

WHITAKER: Well, first of all, I think it's hard to have a huge debate about a case that's already decided by the Supreme Court. But again, I think, she's gonna have a chance to explain herself, and the fact that she didn't write an opinion in overturning—or upholding the district court ruling means that it would just depend on how she does before the Senate in the confirmation hearing.

COOPER: But this puts her on the defensive. Because, if the Supreme Court does overturn her decision, as so many people think that they will, she's gonna look as if she got it wrong—and that's gonna be sitting there, right there.

“She’s gonna look as if she got it wrong?” On what planet do these strange creatures feed?

It’s entirely possible that the Court will reverse the New Haven decision narrowly—by a 5-4 vote. Will that mean that the Court’s four dissenters “got it wrong”—that they should perhaps leave the Court in disgrace? In fact, courts split on such cases all the time; no one except an upper-end pundit is so unsophisticated as to assume that the five-vote majority must surely be “right,” and the four-vote minority must therefore be “wrong.” No one actually thinks that way—except the slumbering, withered minds which comprise our celebrity press corps.

(We know: The pundits only said it might look that way. But no one offered any of the obvious points which likely would have occurred to anyone else on the planet.)

Our mainstream press corps is very unimpressive. In their reactions to Sotomayor’s nomination last week, they seemed intent on proving this point. Consider one part of Charles Krauthammer’s column in last Friday’s Washington Post.

Krauthammer wrote about the New Haven case (the Ricci case), which he thinks has bene wrongly decided. At one point, he made a claim which had been widely parroted ever since Sotomayor’s nomination was announced:

KRAUTHAMMER (5/29/09): Sotomayor was a member of the three-member circuit court panel that upheld the dismissal of [Frank Ricci’s] case, thus denying Ricci his promotion.

This summary ruling deeply disturbed fellow members of Sotomayor's court, including Judge José Cabranes (a fellow Clinton appointee), who, writing for five others, criticized the unusual, initially unpublished, single-paragraph dismissal for ignoring the serious constitutional issues at stake.

Two things are sure to happen this summer: The Supreme Court will overturn Sotomayor's panel's ruling. And, barring some huge hidden scandal, Sotomayor will be elevated to that same Supreme Court.

As so many others had already done, Krauthammer criticized the “unusual” way Sotomayor’s three-judge panel had issued an unpublished “summary ruling.” Two days later, George Will would essentially mouth the same “accusation” on ABC’s This Week:

WILL (5/31/09): In the New Haven fireman case, however, the accusation is not just that she came to a perverse conclusion, or affirmed a perverse conclusion...The accusation goes beyond that, which is that the three-judge panel on the Second Circuit, that in a most perfunctory, cursory, indeed unsigned way affirmed the lower court's judgment, did so in a perverse way that seemed to be trying to slip one by a majority of the Second Circuit.

Will didn’t use the word “unusual,” but the claim was implied. But by now, the charge that Sotomayor’s panel had done something “unusual” had largely been set in stone. And it wasn’t just conservative pundits who had fueled the theory that Sotomayor had done something “unusual”—and, perhaps, sneaky—in issuing that short, unsigned opinion. At Slate, Emily Bazelon had instantly embraced the notion, in a piece entitled “The Sotomayor Mystery.” Bazelon’s entire article sought to answer a sub-headlined question: “Why didn't she explain herself in this year's big race case?” Needless to say, Slate readers were told that the unsigned opinion was “unusual:”

BAZELON (5/26/09): The district court judge who heard Ricci's case ruled against him and his fellow plaintiffs. They appealed to the 2nd Circuit, the court on which Judge Sotomayor sits. In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis. As Judge Jose Cabranes put it, in protesting this ruling later in the appeals process, "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. ...This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed. The court heard argument in Ricci in April. New Haven didn't fare well.

Bazelon said the short, unsigned opinion was “unusual;” she too suggested that the three-judge panel was trying to pull something slick. But then, this anti-Sotomayor talking-point had already been bruited so widely that even Ruth Marcus, in a generally pro-Sotomayor piece, raised the same point the next day in the Washington Post:

MARCUS (5/27/09): I'm skeptical of the initial critiques of Sotomayor—with a few caveats. One involves the New Haven, Conn., firefighters case. I’m not so much concerned about Sotomayor’s position as I am about the summary way the three-judge panel on which she sat handled the case, not even bothering to write an opinion despite the importance of the question involved.

Sotomayor’s panel didn’t “even bother to write an opinion,” Marcus said in her piece. On that same day, Will thundered his view in his own Post column. And uh-oh! Will quoted the hapless Stuart Taylor, a major player in DC whenever legal points need to be bungled:

WILL (5/27/09): Before Sotomayor's confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit—the propriety of New Haven, Conn., canceling fire department promotions because there were no African Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion. A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court's dismissal of the firemen's complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved.

Stuart Taylor of the National Journal calls this "a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both." Taylor says that when "the circuit's more conservative judges got wind of the case," they sought to have it reheard by the full 2nd Circuit. They failed but successfully argued that the Supreme Court should take the case.

Where did this persistent claim start? We’re not going to research that question. But Taylor’s thundering surely played a key role in the spread of the theme. Will was quoting Taylor’s column of May 1—a column for which Taylor formally apologized just four days later. (To review the full package, click here.) On May 5, Taylor withdrew two different claims he had made in the May 1 piece. But his claim about that “peculiar process” was allowed to stand—and it steadily spread. (For the record, Taylor had initially made the claim Will quoted in a piece in December 2008. He then quoted himself on May 1.)

For whatever reason, Taylor felt he had to apologize for several parts of his May 1 column. In a more rational world, this might make other observers wonder about the gentleman’s judgment; it might make such observers proceed a bit slowly in adopting his other derogatory claims about Sotomayor. But that would be a rational world; we’re discussing the world of the upper-end “press corps.” Three weeks after Taylor’s apology, Will was still quoting Taylor’s claim—and the claim was being widely parroted in the mainstream press.

One thing never occurred to these people. It never seemed to occur to anyone to fact-check the claim in question—to see if Taylor’s claim was actually right or wrong. Was there really something “unusual” about the use of that short, unsigned opinion? Luckily, it did occur to Tom Goldstein to check. Last week, he fact-checked the spreading claim for his site, SCOTUSblog.

Last Friday afternoon, Goldstein posted his findings. According to Goldstein, the second circuit routinely decides such cases in the manner which had fanned poor Taylor’s suspicions. There was nothing “unusual” about that short statement, the gentleman said—having checked:

GOLDSTEIN (5/29/09): I also looked at whether there was anything nefarious in the failure of the Ricci panel to publish a substantial opinion. From the pool of 50, the panel affirmed a district court’s decision rejecting a claim of employment discrimination or retaliation (as in Ricci) 28 times; it did so by unpublished order in 24. Whatever one thinks of the argument that the issues in Ricci deserved more attention than the panel gave them, the decision not to publish an opinion seems to have been pretty commonplace.

You might think that three-judge panel was wrong in its judgment. You might think they should have proceeded differently. But it seems there was nothing “unusual” in their use of that short, unsigned opinion.

Let’s review the history here. Taylor first lodged his charge way back in December—and it hadn’t occurred to him, in the months since, to do the simple fact-checking Goldstein performed last week. His suspicions had been fanned—and so he began to trumpet. And uh-oh! Because Taylor is a Big Man on Campus in DC, his unchecked suspicion spread like a weed. Indeed, two days after Goldstein posted his findings, Will was still reciting it sweetly, in his appearance on This Week. It was left to his overworked host to introduce a few basic facts:

WILL (5/31/09): In the New Haven fireman case, however, the accusation is not just that she came to a perverse conclusion, or affirmed a perverse conclusion...The accusation goes beyond that, which is that the three-judge panel on the Second Circuit, that in a most perfunctory, cursory, indeed unsigned way affirmed the lower court's judgment, did so in a perverse way that seemed to be trying to slip one by a majority of the Second Circuit.

STEPHANOPOULOS: It's interesting that, that that SCOTUSblog—Tom Goldstein has also looked at that question and says it's not that exceptional in these kinds of cases. I think he says 24 out of 28 times there have been unsigned opinions.

Fairness and sanity called for those facts. But as we’ve long told you: Facts play a remarkably limited role in the culture of the upper-end “press corps.” In the upper-end “press corps,” a suspicion will pop into somebody’s head. And thunder will roll on the land.

Final point: For us, this was as especially frustrating matter last week because of a comment to a web post—a comment we read last Wednesday. When that three-judge panel offered that unsigned opinion, had they really done something “unusual?” Last Wednesday, Hilzoy summarized the Ricci case (click here). That same day, a commenter added this:

COMMENTER (5/27/09): I would just like to add one small detail to the story—a procedural thing that I'm more familiar with as a lawyer in the Second Circuit. Some people on the web seem to be criticizing Judge Sotomayor not for how the three-judge panel she was on resolved Ricci, but rather, for the fact that they just did it in a short paragraph instead of writing a full opinion. This criticism is very misguided. Not uncommonly, the Second Circuit judges on an appellate panel decide that the District Court judge has done an excellent job, and therefore conclude that nothing is gained by having them essentially rewrite all the reasoning that is already set out in detail by the lower court. So, they do a short paragraph, and in effect just incorporate by reference the reasoning of the trial judge. (It's a feather in the cap of the trial judge when it happens—it means they did an particularly good job.) That is what happened here. It happens all the time. One conservative judge on the court, Jose Cabranes, decided to make a stink about how his colleagues had given the case short shrift. He was well aware that Sotomayor and her panel were not doing anything unusual; he just wanted to prompt his colleagues and/or the Supreme Court to take a closer look at the case. (He succeeded: the Court granted cert.) The allegation that Sotomayor and the other judges on the panel were trying to "bury" or ignore the issues in this case is wholly without connection to reality.

To us, that had the smell of truth—although, of course, we couldn’t be sure. But here’s the point: We read this in a comment to a blog post, even as the mainstream pundit corps’ slumbering ninnies kept trumpeting Taylor’s “suspicion.” Five months had passed since Taylor first thundered. And no one had fact-checked his claim.

Two days after we read that comment, Goldstein posted his findings. But so what? Two days after that, Will was still reciting the script. To his credit, Stephanopoulos knew the relevant facts—and mentioned the facts on the fly.

Your culture has rolled this way for decades:

An utterly hapless D-plus elite will get some cockeyed thought in its head. The thought spreads about at cocktail parties; many halfwits start to repeat it. It occurs to no one to fact-check the claim; your mainstream “press corps” loves narrative, is bored by mere fact. The thought is recited until it’s iconic. This is the way your “press” rolls.

For many people, it’s very hard to come to terms with what this says about this elite. We rarely speak frankly about this small gang. Tomorrow, we’ll ask ourselves why.

Tomorrow—part 4: Another key insight from from Charles.