ROUND UP THE UNUSUAL SUSPECTS! A thought popped into Taylors head. No one bothered to fact-check: // link // print // previous // next //
WEDNESDAY, JUNE 3, 2009
He is his nominees keeper: This morning, the Posts Philip Rucker compares two communities. Sonia Sotomayor grew up in one, Jeff Sessions in the other. Were always sad when people build exclusionary frameworks like this:
Really? Those two locales couldnt be more different? Were always sad when people slide into such frameworks. Can we really not see any similarities? Oops. A few grafs later, Rucker offered this:
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 Childrens Confidant? From this book.) As she started, Wilder imagined herself two different ways. For the record, Wilders daughter, Rose Wilder Lane, was a well-known international journalist:
Wilder could see herself two different ways. Can Sessions see himself in Sotomayor? Sotomayor in him? Well guess they see more than Ruckers 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 Obamas arm.
Part 3Round up the unusual suspects: How unimpressive is our most hapless elite? Consider part of the discussion on last Sundays Chris Matthews Show.
At issue was Judge Sotomayors decision in the New Haven firefighters casethe 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 panels judgment.) The case has now gone before the Supreme Court. Smart money says the Court will reverse.
What follows is part of Sundays discussion, Helene Cooper and Mark Whitaker participating. The pundits seem troubled by a troubling thought: If the Supreme Court reverses the panels decision, wont that mean Sotomayor was wrong?
Shes gonna look as if she got it wrong? On what planet do these strange creatures feed?
Its entirely possible that the Court will reverse the New Haven decision narrowlyby a 5-4 vote. Will that mean that the Courts four dissenters got it wrongthat 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 wayexcept 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 Sotomayors nomination last week, they seemed intent on proving this point. Consider one part of Charles Krauthammers column in last Fridays 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 Sotomayors nomination was announced:
As so many others had already done, Krauthammer criticized the unusual way Sotomayors three-judge panel had issued an unpublished summary ruling. Two days later, George Will would essentially mouth the same accusation on ABCs This Week:
Will didnt use the word unusual, but the claim was implied. But by now, the charge that Sotomayors panel had done something unusual had largely been set in stone. And it wasnt just conservative pundits who had fueled the theory that Sotomayor had done something unusualand, perhaps, sneakyin issuing that short, unsigned opinion. At Slate, Emily Bazelon had instantly embraced the notion, in a piece entitled The Sotomayor Mystery. Bazelons 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 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:
Sotomayors panel didnt 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:
Where did this persistent claim start? Were not going to research that question. But Taylors thundering surely played a key role in the spread of the theme. Will was quoting Taylors column of May 1a 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 standand 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 gentlemans 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; were discussing the world of the upper-end press corps. Three weeks after Taylors apology, Will was still quoting Taylors claimand 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 questionto see if Taylors 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 Taylors suspicions. There was nothing unusual about that short statement, the gentleman saidhaving checked:
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.
Lets review the history here. Taylor first lodged his charge way back in Decemberand it hadnt occurred to him, in the months since, to do the simple fact-checking Goldstein performed last week. His suspicions had been fannedand 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:
Fairness and sanity called for those facts. But as weve 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 somebodys 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 posta 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:
To us, that had the smell of truthalthough, of course, we couldnt be sure. But heres the point: We read this in a comment to a blog post, even as the mainstream pundit corps slumbering ninnies kept trumpeting Taylors 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 factsand 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 its iconic. This is the way your press rolls.
For many people, its very hard to come to terms with what this says about this elite. We rarely speak frankly about this small gang. Tomorrow, well ask ourselves why.
Tomorrowpart 4: Another key insight from from Charles.