It’s that most wonderful time of the month, when I’ve got a few gift links to The New York Times that I haven’t used and I want to share them with my readers. These links will turn into pumpkins at midnight, which is appropriate on Halloween. (That is, they’d turn into unshareable pumpkins for me. Now that I’ve shared them, you should be able to use them indefinitely.) So please enjoy.
“The Debate Dividing the Supreme Court’s Liberal Justices,”by Jodi Kantor. This is by far the most significant of the three, and it’s absolutely fascinating. Kantor’s major thrust is that Justice Elena Kagan is trying to stick with her longstanding approach of being conciliatory in the hopes of occasionally pulling Chief Justice John Roberts and Justice Amy Coney Barrett to her side, whereas Justice Ketanji Brown Jackson has put the right-wing majority on blast.
Nina Totenberg. Photo (cc) 2012 by the Asia Society.
It’s impossible to know what, if anything, went wrong with Nina Totenberg’s story about a mask dispute between Supreme Court Justices Sonia Sotomayor and Neil Gorsuch without also knowing the details of Totenberg’s interactions with her unnamed sources — or source.
But it has the hallmarks of a situation in which the justices, joined by Chief Justice John Roberts, jumped on a small wording problem in order to back away from a controversy they regretted. Totenberg, NPR’s veteran legal affairs reporter, was the collateral damage.
It began with a report last Tuesday morning in which Totenberg noted that, since the rise of omicron, all of the justices had been wearing masks to hearings — all, that is, except Gorsuch. Sotomayor, who has diabetes and who normally sits next to Gorsuch, had been appearing remotely from her office.
Roberts, Totenberg reported, had “in some form asked the other justices to mask up,” and only Gorsuch had failed to comply.
On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask. NPR’s report did not say that she did. Then, the chief justice issued a statement saying he “did not request Justice Gorsuch or any other justice to wear a mask on the bench.” The NPR report said the chief justice’s ask to the justices had come “in some form.”
NPR stands by its reporting.
So what did Roberts actually say? We don’t know. NPR’s ombudsman, Kelly McBride of the Poynter Institute, wrote that Totenberg remained confident she got it right but was hazy on exactly how Roberts indicated to the other justices that he wanted them to wear masks. “If I knew exactly how he communicated this I would say it,” Totenberg told McBride. “Instead I said ‘in some form.’”
McBride’s conclusion was that Totenberg’s story was essentially accurate but that she shouldn’t have used the word “asked,” even modified by “in some form.” McBride also called for a “clarification,” but not a correction, to be appended to Totenberg’s story. Which in turn led Totenberg to tell The Daily Beast, “She [McBride] can write any goddamn thing she wants, whether or not I think it’s true. She’s not clarifying anything!”
The situation reminds me of the smackdown delivered by then-special counsel Robert Mueller in early 2019 after BuzzFeed News reported that former Trump lawyer Michael Cohen had told investigators that Donald Trump had “directed” him to lie under oath before Congress about a Trump Tower deal in Moscow. Mueller had his spokesman characterize the story as “not accurate,” and the episode was seen as a serious blunder by BuzzFeed.
Lo and behold, several months later we learned that BuzzFeed had it right all along. If I may speculate, it looked to me like Mueller took advantage of a minor exaggeration in the story in order to denounce the whole thing at a moment when it looked like Trump might shut down the entire special counsel’s investigation. BuzzFeed was thrown under the bus, and the investigation was saved.
Totenberg’s story was the culmination of an eventful few weeks for Justice Sotomayor. On Jan. 8, Washington Post “Fact Check” columnist Glenn Kessler took her to task for saying during oral arguments, “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.” That number appeared to be 20 times higher than was actually the case. Kessler saw fit to assign her statement a “Four Pinocchios” rating, thus labeling what was almost certainly a spontaneous slip-up as a lie.
At around the same time, Politico’s “Playbook” newsletter ran a story and a photo showing a woman who was identified as Sotomayor sitting back-to at a restaurant with Democratic members of Congress. O, the hypocrisy! Except that it wasn’t Sotomayor — it was Senate Majority Leader Chuck Shumer’s wife, Iris Weinshall. “Our tipster got it wrong, but we should have double-checked,” Politico said in its correction. No kidding.
As for whether and how Chief Justice Roberts asked “in some form” that the justices mask up, we’ll probably never know precisely what transpired. But we do know this: Every justice has been wearing a mask to oral arguments except Gorsuch. And Sotomayor didn’t feel it was safe for her to attend.
Fans of former Boston Herald political reporter/blogger Kimberly Atkins will be interested to know that she’s liveblogging the Sonia Sotomayor hearings for her current employer, Lawyers USA. Atkins, a lawyer, is a staff reporter for the publication.
Boston Globe columnist Scot Lehigh writes that he’s going to try crowdsourcing Jay Severin’s errors. Good luck with that. Here’s my first contribution, based on listening just to part of his first hour yesterday.
A caller ripped the media for hounding poor Sarah Palin while letting Sonia Sotomayor get away with not giving interviews. At least Palin answered questions, the caller said. How can the media let Sotomayor get away with not giving interviews? (I’m paraphrasing from memory, but that was the gist.)
“Great point,” Severin responded, without bothering to point out that Supreme Court nominees, by longstanding custom, are not allowed to grant interviews. As Sen. Patrick Leahy, D-Vt., said yesterday, he wants to begin hearings sooner rather than later so that Sotomayor can finally be heard.
Severin had to know better. By not only not correcting the caller’s error, but by amplifying it and giving him an “attaboy,” I’d say that qualifies as an error. So put it on your list, Scot.
New York Times columnist Bob Herbert pokes fun at Newt Gingrich this morning for calling Judge Sonya Sotomayor a “Latina woman racist,” writing that Gingrich is “apparently unaware of his incoherence in the ‘Latina-woman’ redundancy in this defamatory characterization.”
Herbert is technically correct. But as we all know, Sotomayor’s most controversial public pronouncement came during a 2001 speech in which she said:
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Watch Herbert tie himself into knots as he attempts to allude to that statement without quoting it directly.
For the record, I don’t think Sotomayor is incoherent, redundant or a racist.
At TPMDC, Eric Kleefeld posts a statement from U.S. Sen. James Inhofe, R-Okla., saying that he’s concerned Judge Sonia Sotomayor might allow her “personal race, gender, or political preferences” to exert an “undue influence” over her decisions as a Supreme Court justice.
You’re going to hear a lot of this in the days and weeks ahead. Conservative critics seem to be oblivious to the fact that white men have both a race and a gender. I highly recommend Jeffrey Toobin’s recent New Yorker profile of Chief Justice John Roberts, who has emerged as a conservative activist judge whose world view is very much informed by his race and gender.
To listen to conservative critics of “activist” judges, you’d think that appellate judges would always reach the same conclusion as long as they are competent and free of bias. But we all know that’s not the case, and that judges are heavily influenced by their personal beliefs.
Sotomayor, for instance, is already under fire for her role in a New Haven affirmative-action case that has been appealed to the Supreme Court. But as Harvard Law School professor Charles Ogletree pointed out on CNN last night, “the Supreme Court will probably decide the case 5-4. Now, she’s going to be wrong. Maybe she is. But four justices on this court right now will agree with her.”
In other words, she’s a liberal, and she’s well within the mainstream of liberal jurisprudence.
It was interesting that President Obama announced the Sotomayor pick on the same day the California Supreme Court upheld a voter-approved constitutional amendment that outlaws same-sex marriage. The vote was 6-1. Earlier, the court had created a right of gay marriage by a margin of 4-3.
The California rulings show just how important the courts are in American life — and how judges, reading the same laws, come to entirely different conclusions. If that’s activism, then all appellate judges are activists.
Obama won the election, which means that we’re going to get liberal activist judges rather than conservative activist judges. That’s the way things are supposed to work.
