Puzzle: to whom might the NYT be referring in its Editorial?

The more light that is shined on the tactics and mindset of the Respectable Intellectual Center, the more their influence will erode.

By Glenn Greenwald
Published May 8, 2009 10:08AM (EDT)

(Updated below - Update II )

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.

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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