It took some kind of amazing footwork for Clark Hoyt, the New York Times public editor, to pull off what's turning into an annual ritual: dragging the paper's multiple- award-winning Supreme Court correspondent out to the woodshed for appearing to have opinions in her private life or—even worse— sharing a toothpaste tube with those who do.
This weekend's iteration of Linda isn't THAT bad starts with Hoyt's concession that M. Edward Whelan III—whose online attacks on Greenhouse at National Review Online are tireless—is a bully who is prone to "increasingly intemperate and personal attacks on Greenhouse." But then Hoyt gives Whelan—and other bloggers inclined to trashing professional reputations—exactly what they want: He takes the bully seriously, by airing and evaluating Whelan's claim that the Times is guilty of bias because of Greenhouse's reporting on cases involving the Guantanamo detainees. Her sin? She is married to Eugene Fidell, a nationally recognized expert on military law who has filed friend-of-the-court briefs in earlier stages of these cases, and similar ones before the court. In Whelan's hands, this fact—which Greenhouse told her bureau chief—becomes the latest addition to a lengthy dossier about Greenhouse's unfitness to report Supreme Court news.
Whelan didn't point to any concrete problem with Greenhouse's handling of these cases. That should be easier to do than with almost any other reporter, given that Greenhouse relies primarily on court filings and oral arguments that are publicly available in their entirety, as Yale law professor Judith Resnik points out to us. Unable to point to any actual bias, Whelan resorts to the petulant claim that the effect of Fidell's involvement in the detainee cases "would be impossible to separate … from the broader political bias that pervades so much of Greenhouse's reporting." And so Hoyt rightly charges him with peddling "slippery innuendo."
Hoyt's concern should have ended there. Why dignify the innuendo with a mealy-mouthed response? Greenhouse explained the Guantanamo cases deftly and objectively. In one case she reported on in 2006, her husband's name appeared on a friend-of-the-court brief that she did not mention in her article. In the other current case, her husband's name didn't appear in the brief filed by the institute he runs, which again Greenhouse didn't discuss in her initial coverage.
By telling her bureau chief about her husband's involvement, Greenhouse abided by the Times policy guidelines for possible conflicts of interest. Concluding that the paper should revisit its disclosure policy, Hoyt proclaims that Greenhouse's current online biography—which discloses that her husband, Eugene Fidell, is a lawyer—is insufficient. Left unclear is what would be sufficient for outing the spousal connections of a plainly objective reporter. "Her husband, Eugene Fidell, is an expert on military law and thinks the Bush administration has no regard whatsoever for the rule of law in America" would probably not have helped matters.
(Disclosure: We have both worked with Greenhouse and admire her enormously. Fidell has never said anything about the Bush administration to us. We made that quote up. Also, our husbands like Thai food and the color blue, in case that precludes us from reporting on anything in the future. Also also, Whelan has slimed both of us, too—apparently there's lots of us unfit reporters out there.)
Hoyt concludes his attack that pretends not to be an attack with an exposition on the need for more transparency about the personal lives of reporters like Greenhouse, because perceptions matter almost as much as the underlying facts in cases of conflict of interest. And because, "like it or not, the perception is that Greenhouse is writing about something in which her husband is a player." A player, no less—never mind that Fidell represents no party in any Guantanamo proceeding. In other words, the standard should be set not based on what Greenhouse writes, or even what her spouse writes, but by allegations based on the conspiracy theories of her worst critics.
Superb rule, that is.
This most-skewed-perception-of-bias-by-folks-in-tinfoil-hats standard is not the one that the Supreme Court has chosen to adopt for itself, by the way. Justice Antonin Scalia's son and Justice Clarence Thomas' wife each had professional interests in the outcome of Bush v. Gore. Those family connections didn't prompt any action on the part of the justices, or any sustained criticism. Indeed, Scalia, for whom Whelan clerked, mounted the most eloquent defense imaginable for palling around with Vice President Dick Cheney in the weeks before the high court heard a case involving Cheney's energy policy task force.
Scalia said there was no reasonable appearance of impropriety, and he wasn't going to bow to unreasonable suspicions—i.e., slippery innuendo—because to do so would lead to demands for judges to refrain from hearing cases "for other inappropriate (and increasingly silly) reasons." That was the end of the matter, because Supreme Court justices get to make these rules for themselves. Whatever the merits of the call Scalia made (we defended him), his broader point is worth considering. When every charge of bias merits serious consideration and brow furrowing, simply because it's been made, you get lost in the silly weeds. And you make it impossible for people to just get on with it and do the work they were hired to do.