Harold and Linda, Sittin’ in a Tree…
We’re delighted that our scoop about Yale Law School Dean Harold Koh pushing Linda Greenhouse over Justice Samuel Alito for the YLS Award of Merit has been picked up so widely. It even made the pages of the Holy Trinity of the Right-of-Center Blawgosphere: Instapundit, Volokh Conspiracy (Jonathan Adler), and Althouse.
As noted, our transcript of the deliberations was fictionalized and satirical. But it is based upon what we’ve learned about the process by which Greenhouse was selected.
If you disbelieve our account in its entirety, allow us to share with you some supporting information. This isn’t the first time that Dean Koh has been accused of showing favoritism towards Linda Greenhouse. Consider the case of the Harry Blackmun papers.
Koh, a former law clerk to Justice Blackmun and advisor to his daughter Sally, played a major role in giving Linda Greenhouse exclusive, early access to Blackmun’s papers — much to the chagrin of other news organizations. As reported at the time by Tony Mauro:
Blackmun’s daughter Sally, the executor for the papers, said in an interview last week that Linda Greenhouse, the Pulitzer Prize-winning Supreme Court correspondent for The New York Times, and Nina Totenberg, longtime Court correspondent for National Public Radio, have been given exclusive pre-release access to the papers for their respective media of print and broadcast journalism….The Washington Post asked for early access before the exclusive arrangement was made, but was denied. Editors at the Post were described by one knowledgeable source outside the newspaper as “livid” over the favored treatment granted to the Times.
Executive editor Leonard Downie Jr. and Post attorney David Kendall of Williams & Connolly repeatedly sought reconsideration of the exclusive deal, without success, according to sources at the Post. The Post petitioned Sally Blackmun and Yale Law School professor Harold Koh, a former clerk to the justice and now an adviser to Blackmun.
A Post source says that Koh invited the newspaper to make a proposal for early access last July, but did not mention a deadline. According to the source, by the time the Post replied in September with a plan for non-exclusive early access, the decision had already been made to give the Times exclusive access.
Say it ain’t so! Dean Koh had already made up his mind, in favor of La Greenhouse? Quelle surprise!
For her part, Greenhouse says she began talking with Koh last July, but did not seek exclusivity. The offer to give the Times the only print media preview “fell in my lap,” she says….Koh declined to comment on why Greenhouse and Totenberg were selected.
So what is the origin of Linda Greenhouse’s Svengali-like power over Harold Koh?
We have a theory. Check it out, along with a bunch of interesting links, after the jump.
Here’s our speculation: It’s well-known that Dean Koh harbors Supreme Court ambitions. And having Linda Greenhouse and the New York Times supporting and pushing his SCOTUS candidacy, when the time comes, would be a very good thing for Koh.
Moreover, if you’re a Liberal-Justice-in-Training, there’s no better way to prepare for your role than by befriending Linda G. Greenhouse gets the famously reticent justices to spill their guts like nobody’s business. As noted by Orin Kerr, with respect to this recent Greenhouse piece:
My favorite line from the story: “In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria.” I think this is right; I’m not aware of any juicy cases with clear splits and no vehicle problems that the Court inexplicably turned away.But even more interesting is the fact that Greenhouse would not only think to ask Justices their views of this problem, but would actually get answers from them for the paper. Now that’s access.
And this isn’t the first time she’s scored such scoops. Remember her article about the dearth of female Supreme Court clerks? For that piece, she scored on-the-record comments from four — count ‘em, four — justices: O’Connor, Souter, Ginsburg, and Breyer. (These same four members of the SCOTUS also showed up at Linda Greenhouse’s book party.)
We now remind you of the nickname we bestowed upon Linda Greenhouse back in March 2005: “the Femme Fatale of One First Street.” Here’s what we wrote back then:
It would be fitting for a gorgeously seductive movie star like [Julia] Roberts to step into the shoes of Greenhouse, the Femme Fatale of One First Street. How many women are capable of producing tectonic shifts in American jurisprudence merely by batting their eyelashes at Anthony Kennedy? Indeed, liberal Linda’s disproportionate influence over AMK was memorably dubbed “the Greenhouse Effect” (reportedly by former D.C. Circuit Judge Laurence Silberman).
Clearly this woman possesses magical powers. We have never met Linda Greenhouse in person, although we’ve wanted to for the longest time. But now we are scared. After the Femme Fatale douses us with her magic potion famous charm, we’ll be washing her car.
Paper Chase [Tony Mauro / Legal Times]
A Book Party Supreme [Washington Post]
Yale, Alito, and Politics: A drama in one dubious act. [Instapundit]
Merit Selection [Volokh Conspiracy]
A Yale Docudrama [Althouse]
The Shrinking Supreme Court Docket [Volokh Conspiracy]
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There's no secret, dark mysteries here about Greenhouse or Dean Koh. She is a great reporter who leaves her liberal beliefs out of her news articles and analysis articles to a huge extent -- huge when you consider how much political ideology has affected the Supreme Court and its docket in the last 20 years. As for Dean Koh, he is a former Clinton State Department official -- did you expect a moderate Republican?
And incidentally, I see no need for Greenhouse or Koh to give "equal time" to stupid positions. The idea that American jurisprudence in 2006 (and the future) should be as close as possible to what we speculate some old white guys "intended" in 1789 is simply ridiculous. That (at least) two members of the Supreme Court think that way is relevant to how the Supreme Court will decide, but is a position lacking in any intellectual credibility. Should an institution like Yale -- committed to non-discrimination on the basis of (inter alia) sexual orientation -- give equal time to lunatics to espouse their fear of "radical homosexual agendas"?
Proud Centrist--you are not a centrist. If you were, you wouldn't dismiss originalism in such a wholesale fashion. If you were centrist, it would depend on the constitutional provision at issue, wouldn't it?
You haven't shown how "two members" of the court "lack ... intellectual credibility," other than to make your conclusory statements that they harbor "stupid positions" that are "simply ridiculous."
Have anything else to offer?
Originalism, if actually applied (and not applied selectively to suit Scalia and Thomas when they have a conservative viewpoint to advance) would yield: a "separate but equal" society (i.e. no Brown v. Board of Ed., and yes, I am aware of McConnell's article); a Second Amendment in which the right of the people to bear muskets (nothing more) shall not be infringed, etc. (Examples by others abound, easy enough to find.)
And this assumes you have any idea whatsoever what was intended. It's hard to tell what one long-dead author intended by anything; much less what a writing troupe wth radically different opinions and agendas "intended" in language that is more than occasionally ambiguous. (As a thought experiment, imagine asking different Congressmen what was "intended" in the 2003 vote to go to war in Iraq; you'll get different answers even from those who did the voting. Imagine what answers we could create 200 years from now.)
But all this risks giving originalism any credence as a practical or reasonable theory, which, as I stated, is not necessary. The only reason even to mention it is that certain individuals who espouse it have somehow managed to attain some legal authority. (Similarity: the only reason why anyone should ever bother to comment on "intelligent design" is because some educators in Kansas wanted to teach it as science.)
I think it would be helpful for all parties involved if you posted the info from your inside sources rather than leave us with your fictionalized account. How fictionalized is it? Are there other internal-to-YLS politics driving the leak?
And maybe there's another angle here, too. Maybe Koh wanted to give the award to a woman. You'd probably disagree with the nobility of those motives as well, but at least they're not as sinister or cheap as what you're putting forth.
Anyway, it sounds like you have a bone to pick with the dean for many other reasons, and I, at least, find the amount of venom in these posts distasteful.
not all of us centrists are arrogant morons.
A "corporate" law question for proud centrist:
What is your view on the concept of "ultra vires"?
proud centrist -
Not too up on the whole constitutional interpretation thing, huh?? If you were, you would understand that originalism is more accurately understood to mean original meaning and/or understanding rather than intent. That is widely known and accepted. Furthermore, originalism is a widely accepted interpretive method (as opposed to non-interpretive - know the difference?? Probably not.), and is implemented by liberals and conservatives alike. It was the only accepted method of constitutional interpretation for, oh, more than 100 years, until the liberal activists of the 20th century reared their ugly heads.
I thought this was an exaggeration until I saw Obbie twist himself in knots trying to refute it, including resuscitating the "But Clarence Thomas hasn't been honored" bogus theory without mentioning the fact that Thomas turned down the award. And
Koh's obnoxious snub of Scalia was widely reported by others. With that Obbie entry alone, I now know to trust Lat more than Obbie.
The problem Lat's theory is that he assumes Koh would get anything less than tremendous coverage from Greenhouse if nominated to SCOTUS, award or no award.
Koh is unfortunately one of the more ideologically driven deans out there, and the Alito snub is just another example of his work. I don't see why we should read into it any more than that.
Linda Greehouse publicly acknowledged that she sobbed at a Simon & Garfunkel concert.
That's really all you need to know about her, isn't it?
is she the reporter who publicly revealed she doesn't know the difference between a fact and a value?
Proud Centrist,
I guess you're not too familiar with the thought of the justices. Scalia and Thomas _specifically_ disavow looking at the _intent_ of the founders. Rather, they look at what they wrote.
It is liberal justices like Breyer who look at the "purpose" of provisions and from there decide what the laws "must" mean.
anti-proud-centrist,
"Rather, they look at what they wrote." Are you kidding me? They wrote the Constitution in 1789! I am not sure how many years ago that is, but its a LOT! How can what a bunch of dead white men wrote back then have any relevance to my proud liberal, er, centrist life? In fact, I am so effing in the center, that if you disagree with me, you are obviously a drooling right wing nut job.
Good day, sir.
prouder-centrist
That guy: "...originalism is more accurately understood to mean original meaning and/or understanding rather than intent."
What's the difference between original "understanding" and "intent"? The latter is what we surmise the author meant, the former is what we surmise the audience understood? Neither seems like a particularly reliable guide. And as to original "meaning," well, the "plain meaning" of several key Constitutional phrases are incredibly ambiguous -- what, pray tell, is the "plain meaning" of "cruel and unusual punishment" or "unreasonable search"? And when the "plain meaning" doesn't reveal some sparkling truth, originalists are left guessing at what was meant, or taken to mean -- and always through their own biased prisms.
Anti-proud-centrist: of course liberal justices look at the "purpose" of provisions. All justices (and lesser judges) do, as one potentially useful implement among many. And sometimes that leads Breyer down the wrong path, giving too much deference to the lawmakers. The point is not that all judges who reject originalism will get it right all the time. Just that the best judge will consider the plain meaning of a provision, its purpose, its effect, its equity, etc., etc. -- all before giving any credence to what the New York Tribune thought about what John Adams wrote about what Thomas Jefferson meant about a particular provision.
Prouder-centrist: humor at my expense is great when funny, which I think yours is, so, keep it up!
Dave Lat: yeah, I'm sure you meant for this to happen.
If you're going to be forced to wash something of Greenhouse's, it probably won't be her car.