President Obama mag binnenkort een nieuwe rechter voor het Amerikaanse Hooggerechtshof voorstellen. De smeercampagnes zijn al in volle gang, zoals Glenn Greenwald laat zien. In de rechtse pers werd de latino kandidate Sonia Sotomayor, vrijwel geheel op basis van anonieme bronnen, neergesabeld.
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Puzzle: to whom might the NYT be referring in  Editorial?

In an Editorial today on Obama’s selection to replace David Souter on the Supreme Court, The New York Times writes:

It’s never too early, it appears, to start the character assassination, especially against one possible candidate, Judge Sonia Sotomayor. . . .
Supreme Court vacancies have long been political fights, sometimes intense ones, but generally, they begin when a candidate is picked.  This time, the attacks have already begun, many aimed at Judge Sotomayor and beyond the pale of reasonable debate. She is being called insufficiently intellectual despite her stellar academic credentials. Her temperament is being assailed, generally by anonymous detractors. . . .
When President Obama makes his decision, he should ignore the uninformed and mean-spirited chattering and select the best person for the job.

Congratulations to Jeffrey Rosen, TNR and Rosen’s Eminent Legal Scholar friends for their uncredited appearance in today’s NYT Editorial.  The mini-scandal over the Rosen/TNR assault on Sotomayor is packed with ironies, most prominently the fact that Rosen’s criticisms of her work were characterized by extreme intellectual sloth and even deep confusion over simple legal issues (as even his own fellow law professors pointed out in unusually stinging critiques), all as Rosen proudly held himself out as the crusader on behalf of so-called “concerns” over Sotomayer’s intellectual abilities.
read on here>>

But today’s NYT Editorial underscores another glaring and significant irony.  Consider one of the prime complaints from people who snidely dismiss online commentary, as Rosen obviously does (as I noted yesterday, he can’t deign to name any critics to whom he’s responding; he strangely refers to those who wrote criticisms of his article as “readers”; he subtly mocks the criticisms which he provoked as “an enthusiastic response in the blogosphere”).  From that condescending circle, it is frequently heard that online and blog commentary is “unreliable” and even harmful because it has no standards, because the online rabble can say anything they want, because anonymity permits reckless attacks and breeds mean-spirited gossip.  Apparently, though, if that exact same anonymous, standards-less, malicious, fact-free chatter is placed under the banner of The New Republic (or the NYT or The Washington Post or NBC News) and endowed with the byline of a Serious journalist, then it’s magically transformed into “reporting.”

Thus we have The New York Times today condemning ”character assassinations beyond the pale of reasonable debate” and “uninformed and mean-spirited chattering” by “anonymous detractors,” and they’re not referring to anything coming from blogs.  Instead, all of that came from one of the leading lights of the Respectable Intellectual Center, in an establishment journal, purporting to carry out the dirty work of Eminent Legal Scholars while calling it “journalism.”  Note, by meaningful contrast, that those who generated the so-called “enthusiastic response in the blogosphere” to Rosen’s smears actually attached their names to what they said — and used verifiable facts and documented evidence when doing so.  For all the hand-wringing about the harmful effects of anonymity and fact-free, unaccountable gossip from blogs, such things are actually found far more often in the very establishment venues where those complaints are so self-righteously voiced, decorated with the label of “reporting.”

* * * * *

On a related note:  I received the following email last night from Berkeley Law Professor Melissa Murray:

Dear Glenn,

As a former Sotomayor clerk, I just wanted to thank you for your responses to Jeffrey Rosen’s recent “article” about the judge.  My year clerking for her was one of the most challenging and exhilarating experiences of my career. Her intellect, professionalism, and diligence were remarkable and inspiring. In researching a case, she never left a stone unturned, nor did she allow us to take shortcuts in our work. It’s too bad Jeffrey Rosen never benefited from her example.

Indeed, that’s one of the ironies which I referenced above.  And it’s amazing how Rosen had such a difficult time finding anyone to say things like this even though they are all over the place.  One could avoid views like these only if one resolved ahead of time to do so.

One final point:  the issue here, at least for me, is not whether Sotomayor is Obama’s best choice.  I still don’t have an opinion on that, and there are undoubtedly other excellent options for Obama.  One of the other judges on Obama’s now-formalized short list of six people, Seventh Circuit Judge Diane Wood, participated in an appeal I argued in that circuit and asked extremely smart and well-informed questions at oral argument.

The relevance of the Rosen/TNR/Eminent Legal Scholars smear is that it illustrates how our Guardians of the Respectable Intellectual Center function, and the tactics that drive so much establishment “journalism.”  Add to that the potent cultural issues prominently at play here — the familiar personality stereotypes passing for high-minded “concerns” from the self-anointed (and cowardly) arbiters of intellectual “merit” — and it’s not hard to understand why the anonymous Rosen/TNR attacks resonated so powerfully.  This is the sort of thing that happens over and over and drives much of the predominant political dialogue.  Please read Dahlia Lithwick documenting how Rosen, for more than a decade, has led the crusade on behalf of what he calls ”meritorious judicial appointments” which always seems, magically, to translate into “people who are just like Jeffrey Rosen” (Emily Bazelon references other examples of that same mentality).

Yesterday I wondered, as did others, whose reputation will be harmed more by the behavior here of Rosen and TNR:  Sotomayor’s or their own?  This morning’s NYT Editorial points to the answer.  As Andrew Sullivan noted early on in this matter, the strong and immediate reaction from many corners to Rosen’s slimy attacks reflects the erosion of the Respectable Intellectual Center’s ability to control political discourse (that’s also reflected by the commendable expression of regret from Stuart Taylor for being “unfair” to Sotomayor in general and specifically for irresponsibly passing on anonymous claims smearing her).  The more light that is shined on what they actually do, the more that erosion will accelerate.  What this incident really illustrates most of all is that there are few goals, if there are any, more important than pushing that process along.

UPDATE: The New Yorker’s Amy Davidson returns to the subject of Rosen’s article, calling it ”an ugly little piece” and says that “its flaws, tonal and reportorial, are obvious even to the lay person.”  They’re certainly are that, but are they obvious to establishment journalists?  Here is what ABC News’ Jan Crawford Greenburg wrote in her piece about Obama’s short list:

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice. . . .

But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer—something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness—which could be problematic on the high court.

I think Greenburg generally is a very good reporter, but this is a very strange passage.  It’s completely devoid of any basis or source citation, instead using the passive voice (”she’s also been criticized for abrasiveness”) or assertions that just hang, unsupported, in the air (she “has not dazzled or distinguished herself on the appeals court”).  By whom has Sotomayor “been criticized for abrasiveness”?  By Rosen and his friends, or is Greenburg referring to something else?  And who hasn’t Sotomayor “dazzled”?  Is that Greenburg’s view after reviewing Sotomayor’s legal opinions?  Or is she citing the claims of anonymous sources, or conveying the views of the White House, or just repeating what Jeffrey Rosen passed on?  In order to make what she’s writing something more than uncorroborated gossip and chatter, isn’t it necessary to know that?

It’s certainly important who the Supreme Court nominee is, and questions about their abilities and intellect are legitimate.  But before publicly slapping a label on someone’s forehead that declares them to be an intellectual lightweight and mediocrity who is being considered solely for their ethnicity and gender, there should be some actual basis for doing that.  That’s so obvious that it’s hard to believe it needs to be explained, let alone explained to journalists.

UPDATE II: Here’s Jeffrey Rosen, reviewing the book The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, expressing deep concern over the spread of gossip in the blogosphere (h/t DJ Murphy):

As the Internet is erasing the distinction between spoken and written gossip, the future of personal reputation is one of our most vexing social challenges. In this illuminating book, filled with memorable cautionary tales, Daniel Solove incisively analyzes the technological and legal challenges and offers moderate, sensible solutions for navigating the shoals of the blogosphere.

That truly is a great worry among our elite journalists:  what is going to happen to people’s reputation in the Age of the Blogosphere, where people can just pass on character-destroying gossip about someone with no accountability? 

– Glenn Greenwald
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Jeffrey Rosen and TNR’s response to critics

(Updated below - Update II - Update III - Update IV - Update V)

Jeffrey Rosen and The New Republic really are owed a debt of gratitude for shining a light on how shoddy, arrogant, non-responsive and deliberately misleading so much of our establishment “journalism” really is.  Rosen purports to respond today to what he condescendingly refers to as the “energetic response in the blogosphere” to his anonymity-dependent attack on Sonia Sotomayor’s intellect and judgment.  Rosen doesn’t deign to name any of the critics and links to only a couple in passing, and is thus free to ignore many of the serious ethical problems and factual errors in his “reporting” raised by numerous commentators and to distort that which he does address.  Rosen takes full advantage of that freedom:

(1) The single most serious charge against Rosen was raised by Law Professor Darren Hutchinson, who conclusively documented that one of the very few verifiable factual assertions Rosen included was, as Hutchinson put it, “patently untrue.”  Specifically, Rosen claimed that a footnote from a “senior judge on the Second Circuit” accused Sotomayor of “misstating the law” and “misleading litigants.”  But the footnote did no such thing — not arguably, not remotely.  It’s simply a factually false claim by Rosen, as documented by a fellow law professor.

In reply, Rosen simply asserts (with no reasoning at all) that there is more than one way to read that footnote, and then defends his characterization of it by claiming that his secret sources told him that the footnote was “widely understood” to be intended as a criticism of Sotomayor.  Here we have the essence of the modern establishment journalist:  they see their primary role as writing down what Serious people tell them to write down, instructions issued from behind the veil of anonymity, and they then publish it as though it is fact.  That, in essence, is what Rosen’s entire piece was, and it’s what made it so shoddy and wrong.  The fact that these tactics were invoked in service of maligning someone’s intellect and character made it that much worse.

(2) Rosen’s principal excuse for passing on anonymous disparagements of Sotomayor — that “anonymous comments aren’t ideal, but there was no other way, in this situation, to get people to share candid questions about judicial temperament” — is blatantly false.  There are numerous categories of lawyers with first-hand knowledge of Sotomayor who have no reason to fear expressing their views of her — retired lawyers, lawyers no longer in private practice, law professors, lawyers who no longer work in law at all, lawyers whose practice would not be affected by expressing critical views of her (as but one example:  I practiced in the Second Circuit for more than 10 years, with several cases in front of Sotomayor, but obviously felt no compunction about sharing both positive and negative impressions of her with my name attached; there are numerous other people in that situation had Rosen bothered to look).

Getting a few people to chatter with the promise of anonymity is certainly the least burdensome way to get people to say bad things about someone.  It’s easy to understand why an extremely slothful “journalist” with no standards would opt for that path.  But to claim that this is the only way to obtain candid assessments of a judge is clearly untrue. 

Even if that claim were true, Rosen’s mentality illustrates the decay that lies at the core of modern journalism.  In his view, it’s better to write a story using completely unreliable and discredited methods than it is to simply refrain from writing the story at all (well, the alternative to writing an unreliable piece was to write nothing, he argues, as though that’s exonerating).  Publishing a hit piece on someone’s character and intellect using unreliable methods is infinitely worse than refraining from writing a story at all until you can get people to speak on the record and thus ensure there’s accountability.  But if you’re desperate for attention and care only about being the first person to write a story, then standards of truth and reliability don’t matter.

Moreover, the notion that anonymity breeds candor is an absolute myth; oftentimes, people feel the freest to lie and speak recklessly precisely because they are able to do so with no accountability.  Worse, relying exclusively on anonymous sources allows a reporter to manipulate and distort what he’s been told.  If Rosen and Frank Foer don’t understand that, they should ask Judy Miller about how all that works.  There are all sorts of motives someone might have to smear Sonia Sotomayor; there are all kinds of reasons to doubt their good-hearted “liberal” allegiances or the depth of their knowledge or expertise necessary to make their assessments worthwhile.  But anonymity prevents those assessments from being made, forcing the reader instead to blindly rely on the judgment and honesty of the reporter — something which, in this case, one would do only at their great peril.
(3) Rosen claims that he began his hit piece on Sotomayor when he was contacted by “eminent liberal scholars [he] knows and trust[s]” who “closely follow Sotomayor’s work and expressed questions about her temperament.”  These eminent legal scholars then put him in touch with former clerks and prosecutors who shared these concerns.

Why couldn’t these “eminent legal scholars” who have such close familiarity with Sotomayor’s work speak on the record and express their concerns?  How cowardly are they?  They care enough about smearing Sotomayor to call Rosen out of the blue, ”express concerns” about her behavior, and do the legwork of putting Rosen in touch with their handpicked friends who also don’t like Sotomayor — but they’re afraid to speak publicly on such a matter of public interest?  They don’t sound like “eminent liberal legal scholars” to me; they sound like cowardly character assassins carrying out a vendetta that Rosen eagerly helped to advance.

(4) Rosen dismisses the issue of his relationship to Neal Katyal as nothing more than my “conspiracy-minded suggestion” by denying that Katyal was one of his sources.  But the principal issue I raised — via email with Foer and in emailed questions to Rosen (which he did not answer) — was why that relationship was not disclosed given that Katyal stands to benefit if Obama selects Elena Kagan rather than Sotomayor.  Foer told me in his response that Rosen would disclose this relationship when he writes about Kagan.  Foer apparently thinks Rosen’s relationship to Katyal is relevant when Rosen writes about Katyal’s boss, so wasn’t it also relevant when Rosen was trashing the reputation of one of Kagan’s principal competitors for the Supreme Court?

Moreover, one can mock questions about sources as “conspiracies,” but that’s the whole point of anonymity:  Rosen is able to write an entire article based on unseen, unidentified, unaccountable people.  He shouldn’t be surprised when people start speculating about who these chatterers are and even how accurately or fairly Rosen is conveying their chatter.  Responsible journalists avoid being subject to speculation of this sort by using anonymous sources only in the most compelling cases, rather than the low-level gossip column methods on which Rosen’s entire piece was based.  (Rosen also did not address the fact that his wife works for a far right organization to which Rosen himself spoke about Supreme Court nominees).  Even if limited anonymity could be justified to smear Sotomayor, Rosen’s various incestuous relationships and motives make his reliance on anonymity particularly susceptible to suspicion.

(5)  One of the principal criticisms of Rosen’s article was that he admitted that he had not bothered to familiarize himself with Sotomayor’s actual work. The notion that he should have done so before writing an article questioning her judicial abilities still is something he cannot even acknowledge, let alone accept.  Modern standards of establishment journalism have eroded so severely that they actually now think that admitting their sloth and lack of any basis for what they “report” is some sort of grounds for praise.

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What really happened here is now manifest — and typical.  A couple of Rosen’s secret friends don’t like Sonia Sotomayor and called him to encourage him to smear her in the pages of The New Republic.  Rather than do the work to determine if these “questions” about her abilities had merit — by, say, conducting a thorough survey of her key judicial opinions the way a conscientious law professor might — he instead set out dutifully to undertake the mission assigned to him by these “eminent legal scholars” by calling the people they handpicked for him, who then eagerly attacked Sotomayor.  Rosen then mindlessly wrote it all down — including facts that were either false (the footnote) or highly distorted (Judge Cabranes’ New York Times statement about Sotomayor, which was clearly a compliment, not a criticism), and then sent it to TNR, which slapped a provocative and (by Rosen’s account) misleading headline on it and then happily published it.  That Rosen himself was a chief champion of John Roberts, and had already expressed concerns that Obama might take diversity into account when appointing someone to the Supreme Court, undoubtedly made Rosen more than happy to be chosen to carry out this dirty task against someone who is most assuredly not part of his circle.

In other words, Rosen did what the modern journalist of the Respectable Intellectual Center does by definition:  he wrote down what Serious People told him to say, agreed to protect their identity, and then published their very purposeful chatter without doing any real work to verify, investigate or scrutinize it.  As a result, a woman who spent the last four decades of her life using her talents and intellect and working extremely hard to reach amazing heights in the face of great obstacles is now widely viewed as an intellectually deficient, stunted, egotistical affirmative-action beneficiary who has no business being on the Supreme Court — all thanks to the slimy work of Jeffrey Rosen, his cowardly friends of the Respectable Intellectual Center, and The New Republic.

And even now that numerous people have pointed to the multiple factual errors and shoddy claims on which the whole piece was based, it all gets dismissed away in a few non-responsive paragraphs as nothing more than the hysterical reactions from the conspiracy-addled, un-Serious dirty masses of the blogosphere.  Cowardly, eminent legal scholars and media stars from the Respectable Intellectual Center will continue to see Rosen as someone Serious, and ultimately, that’s all that matters.

UPDATE: The link which Frank Foer emailed me, alerting me to the fact that Rosen’s response had been posted, was to the two-paragraph blog post by Rosen, not the full response which TNR published today (that’s here), which contains a few more paragraphs.  In those added paragraphs, Rosen addresses the issue of the footnote; he includes a link to a Media Matters post criticizing his article; and also claims that he had more knowledge of Sotomayor’s work than he stated in his article, including having read a few opinions written by her (which he found ”good but not great”) and having consulted the Almanac of the Federal Judiciary which contains anonymous input about her that he says is consistent with what his sources told him.  He mentioned none of that in his original piece.

Rosen’s assertions about the added information he now claims he had squarely contradicts his principal self-defense here:  that there was no way for him to have written a meaningful assessment of Sotomayor without quoting anonymous sources who trashed her.  Quite obviously, he could have and should have done what he now claims he began to do:  read her opinions, consult published sources about her abilities, and then state his opinions by citing the evidence for it.  After that, if he thought it was necessary, he could get people to speak on the record about Sotomayor.  Allowing people to malign her anonymously was, by far, the least reliable of the methods to use, yet it was the one on which virtually the entire piece was based.  The fact that he now claims he had other methods available to him simply bolsters the conclusion that there was no justification for passing on malignant gossip from hidden sources masquerading as Serious analysis.

UPDATE II: The New Yorker’s Amy Davidson documented numerous other flaws in Rosen’s initial piece, with a focus on his clear distortion of Judge Cabranes’ quote about Sotomayor (referenced above).  But as Media Matters notes, Rosen ignored that issue in his response even though the allegation was rather serious:  namely, that Rosen ”cropped a comment by judge Jose Cabranes to make it appear as though Cabranes was critical of Sotomayor’s intellect - and that, in fact, the full quote included praise for Sotomayor’s intelligence.”

Meanwhile, TPM’s Brian Beutler notes that, having been widely chided, Rosen today virtually reversed himself concerning his assessment of Sotomayor’s fitness, from the original piece’s warning that “given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble,” to today’s praise that “Sotomayor is an able candidate–at least as able as some of the current Supreme Court justices–and if Obama is convinced she is the best candidate on his short list, he should pick her.”  That, I suppose, is progress — as well as a testament to the growing ability of those outside the Respectable Intellectual Center to impose checks on what they do — but, I suspect, the damage to Sotomayor’s reputation from Rosen’s recklessness has already been done.

UPDATE III: John Cole, as usual, cuts to the heart of the matter.

UPDATE IV:  A TNR commenter perfectly summarizes Rosen’s defense of his false claims about the footnote:

Shorter Rosen: Yeah, that footnote I mentioned doesn’t actually say that Sotomayor misread the law or misled anyone, but my anonymous friends have assured me that the court was actually writing in a secret code that only they can understand and in which they in fact slammed Sotomayor’s intellect and competence. So as you can see, no correction is necessary.

Then again, Rosen is a member of the Respectable Intellectual Center and his friends are Eminent Legal Scholars (so Eminent that they are hiding), so perhaps they can see things in the footnote that ordinary literate people are unable to detect. 

UPDATE V: Professor Hutchinson, who was the first to highlight how false was Rosen’s claims about the footnote, today does the same with regard to Rosen’s self-defense that the footnote can be read in different ways and that, regardless of the words, his secret sources assured him that the intent was to criticize Sotomayor.  After laying bare the emptiness of Rosen’s “response” today, Hutchinson concludes:  ”Finally, after two essays, Rosen still has not analyzed one opinion written by Sotomayor. This glaring omission completely undermines his evaluation of her.”

There is a very legitimate question here as to whose reputation Rosen has harmed more — Sotomayor’s or his own.

– Glenn Greenwald

This entry was posted on zondag, mei 10th, 2009 at 1:45 am and is filed under American In The News, Paparazzi, Misdaad, Politiek. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.