January 24, 2008


Surprise! The Times Attacks the Messenger: Linda Greenhouse is conflicted, so obviously the problem is Ed Whelan. (Andrew C. McCarthy, 1/24/08, National Review)

[Ed Whelan, the brilliant legal analyst who heads the Ethics and Public Policy Center] determined to take a complaint to the Public Editor. At Bench Memos, he had pointed out that the Times’ heralded Supreme Court reporter, Linda Greenhouse, had a stark conflict of interest: She was reporting on crucial war-on-terror cases in which her husband, prominent D.C. attorney and Bush-administration critic Eugene Fidell, had participated as a litigant. Specifically, Fidell, whose specialty is military law, had participated in amicus briefs filed on behalf of enemy-combatant detainees — such delightful chaps as Salim Hamdan, Osama bin Laden’s former bodyguard and guy-jumah.

Though the conflict was patent, Greenhouse and the Times chose not to disclose it to readers, even though it was something about which they, and the Times, had thought carefully before staying mum. For example, in some fairly hilarious parsing after Whelan called her on it, Greenhouse insisted that Fidell had not represented a “party” in the cases. Okay … but how does that help? An amicus never formally represents a party. Amici are permitted to file briefs in aid of the court’s consideration of a case upon showing that they have a stake in the outcome — that is, unlike parties, who are not necessarily litigating by choice (Hamdan, for example, would prefer not to be at Gitmo), friends of the court choose to jump into cases and are allowed to do so because they are strongly interested.

Fidell, moreover, removed his name from the Supreme Court amicus brief his organization, the National Institute of Military Justice (lavishly funded by George Soros), filed in the more recent Boumediene case — which, as anyone familiar with Greenhouse’s always-balanced reporting can tell you, involves whether it was proper for Congress, in its “waning weeks under Republican control,” to engage in “court-stripping action … in light of the Constitution’s injunction to Congress not to suspend ‘the privilege’ of habeas corpus.” Greenhouse has acknowledged her husband struck his name precisely because he knew she was reporting on the case. Their tracks, however, were not covered: He had already signed the brief his organization filed on behalf of the same detainees in the lower court; and even in the Supreme Court, Fidell was listed in the amicus brief submitted by another entity, the Constitution Project, as one of the signatories to its “Statement on Restoring Habeas Corpus Rights Eliminated By The Military Commissions Act.”

Why was Fidell’s involvement in the cases a “patent” conflict for his wife’s reporting on them? Well, if that’s not plain enough on its face, one could rely on the generally applicable legal standard, which counsels counsel to avoid “even the appearance of impropriety.” But why resort to such arid rules when we have the New York Times itself as our compass.

The Times is ever quick to find conflicts of interest, just not in its own house. For example, one could only be astonished (which, by the Grey Lady’s standards, is saying something) when the newspaper — a plaything passed down from Sulzberger to Sulzberger — elected to fret at length about “neo[con]-nepotism” at Commentary. The magazine had announced that the highly accomplished John Podhoretz had been chosen to become its next editor: clearly a merit promotion notwithstanding that John will assume the prestigious seat his legendary father, Norman, occupied for decades.

Then there was another Times fave, Justice Antonin Scalia, who outraged the editors because he would not recuse himself from a case in which the high court considered a Bush administration task force — after all, the Justice had gone duck-hunting with [shudder] Dick Cheney. “It is an elemental principle of law,” the Times railed “that judges must not have, or even appear to have, an interest in the cases before them.” Why, “[t]he public wants judges to avoid even the suggestion of bias[.]”

...justice requires that judges be above reproach, but no one expects journalists to adhere to a code of ethics.

Posted by Orrin Judd at January 24, 2008 8:12 AM

One could expect may that some of the illiterati fail to comprehend the difference between a litigant and a litigator. We used to expect better from the National Review.

Posted by: Lou Gots at January 24, 2008 5:32 PM

Also in fairness to the Times, Greenhouse would be just as biased if her husband had nothing to do with the case.

Posted by: Ibid at January 24, 2008 7:44 PM