Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, November 07, 2005

More On Academic Exercises and Nominee-icide

In a comment to a recent post regarding the fiercely pro-privacy, and seemingly pro-gay-rights thesis Judge Alito authored as an undergraduate at Princeton, which the Bush Administration mouthpieces dismissed as an "academic exercise," Binky suggested that such an "exercise" was what scuttled Bill Clinton's nomination of Lani Guinier to the Justice Department's Civil Rights division. Without a link or an explanation, however, uninformed little me had no idea what she was talking about.

Now, chiding me for not picking up on the reference (which to be fair occurred when I was a freshman in college studying engineering and all but indifferent to politics), Binky followed up privately providing a link to a 1993 article from the Columbia Journalism Review, which provided more detail.

The story seems more than a little germane to what seems to be my little crusade the last week or so to identify every misrepresentation of Judge Alito's record, most of which occur more out of ignorance and repetition than out of any sinister motive. The fact remains . . .

Lani Guinier (and I confess that what follows tracks only the CJR article, so to the extent it's wrong, so am I), was attacked during the pendency of her nomination for having authored scholarly articles that some construed as being downright radical with regard to affirmative action. After explaining the aggressive right wing campaign to discredit Guinier, based in large part on selective quotation of the articles in question, the article noted that the Washington Post's Michael Isikoff largely adopted in his coverage not only the summaries but even the results-oriented quotations employed by the right wing smear campaign. The article continues:

Scholarly articles should not, of course, be immune from scrutiny in a confirmation battle. But two standards ought to be met: one, that the selected passages accurately reflect the author's overall views and, two, that the writings are relevant to the nominee's potential responsibilities. Of course, press coverage of all bodies of work should meet those standards. But the length and complexity of academic writing may make it particularly difficult to summarize and particularly easy to distort. In addition, "scholarship is a conversation," as Yale law professor Stephen L. Carter puts it, in which academics throw out ideas partly to "provoke a response." Journalists should be hesitant to treat such tentative recommendations as concrete policy prescriptions.

No such reticence was exhibited in the coverage of Lani Guinier's scholarly writings. Too few reporters questioned whether her theorizing was relevant to a third-tier, though important, job within the Justice Department. Too many reporters uncritically accepted Bolick's and other conservatives' depictions of her views, the same quotes appearing over and over again in such publications as Newsweek, the Los Angeles Times, and U.S. News & World Report. Too few reporters made a concerted effort to explain her views on her own terms before offering others' criticisms of them. And too many reporters substituted code words, such as "quotas," "affirmative action," and "reverse discrimination," for a genuine dialogue on the sensitive subject upon which her writings focus -- the continuing effort to thwart blacks' effective participation in the political process. The result was a portrait that University of Chicago law dean and constitutional scholar Geoffrey Stone calls a "cartoon." [emphasis mine]

Now, in particular, the role provocation plays in an academic discussion ought to have no place in judicial opinions, and thus that particular cautionary note is distinct to the academic context and not relevant to the discussion of Judge Alito's nomination.

The other language, however, is dead on point to the instant problems I've been discussing on this site. The truth is, too many commentators and reporters are substituting pithy or facile readings of intensely nuanced opinions. The import of those opinions may be subject to dispute, as may be what they do or don't say about Judge Alito's likely conduct as an Associate Justice of the Supreme Court, but where x, y, and z, are legitimate interpretations of a given opinion, reporters that run with some left-wing idealogue's strident insistence that a, b, and c, all horrible apocalyptic outcomes, are in fact what the opinion means doesn't make it true.

If reporters and editors are expected to fact-check, why shouldn't they also be responsible for checking out whether there is any sort of support for a given pundit's most facile inflammatory suggestions. I know this rejection of he-said she-said reporting is old news by now, but in an information-intensive venue like the debate that ought to surround the confirmation of a nominee to the Supreme Court, shouldn't the standards be higher? This seems all the more obvious where there is an extensive written record. I come across interpretation after interpretation of Judge Alito's work that, if written on a final exam in a law school class wouldn't earn the student higher than a D for that question, where due to grade inflation a C is perilously close to a failing grade. It's not about right or left -- it's about finding somewhat of a consensus from relatively indifferent attorneys who know how to read this stuff. It's refusing to write about something in 250 words where 500 words are the minimum that will suffice. It's simple honesty.

This distillation to the point of incoherence approach was applied to Guinier, who came to be known as the "Quota Queen," ostensibly due to her belief that affirmative action would be successful only where roughly proportional results were achieved among the races. The article explains the falsity of this widely promulgated claim and attendant soubriquet:

He and those who regurgitated his analysis ignored her comment in the Virginia Law Review that, while she could be accused of "outcome-oriented jurisprudence," her "focus on legislative rules, not decisional outcomes, adequately answers this criticism." And Guinier never proclaimed (authors rarely proclaim in footnotes) that the law mandates "roughly equal results." When read in conjunction with the sentence that follows, Guinier seemed to be claiming that "substantive equality" should be measured both by "the process," which "must be equal," and "the results," which "must also reflect the effort to remedy the effects of a century of official discrimination." This complex idea was reduced to: Lani Guinier does not believe in "equal opportunity."

"Strip Search Sammy," anyone? (I should note that Lindsay took the time to defend her views regarding this case on this weblog with far more robustness and cogence than pretty much any proposition I've read anywhere in the MSM about Alito. I still find pithy soubriquets to by symptomatic of an underlying tendency to oversimplify; wit is no substitute for rigor and nuance.)

Next, the CJR article considers the broadly parrotted claim (by Neil Lewis, among others) that Guinier had written that Virginia's black governor was "inauthentic," an Uncle Tom, for having prevailed in his election due to widespread white support. Carefully analyzing Guinier's scholarship, which it found dense and convoluted, CJR concluded:

To state that Guinier considered Wilder inauthentic was wrong. Most press accounts, however, didn't even provide the basic definition of "authenticity" as used in voting rights terminology. To many journalists the subtext of this racially loaded charge -- that Lani Guinier called Doug Wilder an Uncle Tom -- was too important to leave out, but not important enough to try to understand or explain.[emphasis mine]

This continues to sound familiar -- suggesting, for example, the durable but demonstrably (and objectively) false meme that Judge Alito would have ruled that the FMLA did not protect state employees. And here's the problem:

To Stuart Taylor, Jr., a columnist for American Lawyer Media newspapers who criticized Guinier in three columns, such "condensation" of long, scholarly articles "is unavoidable, and the judgment as to how much context must be provided to be fair is a subjective one." Many journalists didn't bother much with context. In fact, many reporters relied on Taylor -- whom New York Times reporter David Margolick describes as "one of the few people in Washington or anywhere else actually to wade through" her articles -- for their context. Taylor says he received several frantic calls from reporters asking for a quickie summary of Guinier's views to be used in articles due later that day. That gave Taylor, an opinion columnist with defined views on civil rights, a disproportionate influence over the debate.

Not bothering with context. Not wanting to "wade through" dense legal writings.

The article concludes with the observation that a situation is ripe for such misrepresentations where a nominee has a long paper trail and opponents have the impetus to oppose fiercely the nominee's confirmation. It proposes that "In the future, the press will have to work harder to ensure that the nominee's opponents don't set the agenda and dominate the debate."

But that's exactly what's happening here. Mind you, the "nominee's opponents" are my political allies, and indeed are people with whom I cast my lot, on this issue and others. But that offers no comfort when a debate that could be about the issues and about what qualities Americans want in a judge instead becomes a smear campaign entailing broad-based misrepresenation of the nominee's views and writings (typically compounded by an utter lack of explanatory caveats concerning his ethical boundaries as a judge on an intermediate appellate court) in lieu of an acknowledgment of the man's tremendous talent, impeccable profesional record, and clear humility and restraint. And the media are complicit in attending to and relying upon these patently biased and all-too-frequently self-evidently (and sometimes unapologetically) uninformed commentators in lieu of those with no particular axe to grind and the background to speak intelligibly and with at least some semblance of objectivity about the gravaman of Judge Alito's opinion, taken in isolation and as a whole.

The CJR offered four solutions to improve the quality of reportage. While they are tailored to a person nominated to serve as a government attorney, they are close enough to the relevant concerns in the judicial context as well.

First, reporter[s] need to evaluate whether a nominee's philosophical theories will decisively affect the job he or she is to do. Second and most obvious, reporters need to read the articles, in their entirety, and decide for themselves, perhaps with the aid of scholars, what they in fact say. And the articles must be engaged on their own terms, not terms borrowed from previous partisan debates.


Third, reporters must be committed to explaining a nominee's views in totality, not the most controversial parts. And fourth and most difficult, the press, must look beyond the easy code words, like "quota queens," to facilitate a real discussion . . . . [emphasis mine]

I'm not holding my breath, but when even the most reliable media can't be trusted to furnish useful, accurate information, neither can be trusted the populace's behavior which necessarily relies, at least in part, on those sources for determinative information. This is just another instance where a journalism that substitutes equal-time for various interested parties to repeat their talking points for objective, critically informed analysis is no more than campaign literature or a fund-raising wing for the PAC's behind the bowdlerizations.

And Binky's reference to the Guinier story just reminds us that it's really an old story. It'll change when enough of us want it to. And to those who would suggest that the blogosphere has had a salutary effect on this phenomenon, I should hope that my recent critiques at least give one pause before adopting that proposition: I would like to think the truth is easier to find now than it was then, given the proliferation of bright and insightful sources, but when the chips are down it seems the talking points still are most of what emerges, and that the mainstream idealogues, as quoted in the mainstream press, continue to set the terms of the debate.


Anonymous binky said...

Now, Moon, if I was really chiding, you'd know it. That was just a gentle nudge.

In any case, I think this whole discussion highlights a central question in democracy: how informed do you have to be to participate, and to what degree do authoritative participants have an extra responsibility to be (well)informed? Both of us know that when playing on the other's turf sometimes we don't have the most complete understanding or set of knowledge, and we feel free to point that out, give and take, learn, adapt, etc. I'd like to think, as you have discussed, that smart people who are simply under-informed or un-trained in a way that helps them understand certain issues (e.g. legal writings) are open to being educated. But can we assume that everyone fits this description? I'd like to think all journalists do, but I have enough of them in my undergrad classes to wonder. So what do we do about people who should be able to participate but just don't understand. Some people are like that with math, or physics, or maybe legal writings. We could also revisit the perpetual thinkers/feelers conversation. I don't think these are grounds to exclude them from the "conversation" of democratic politics.

On a side note, this is one of the reasons that I end up being more democratic than my sometimes libertarian tendencies would suggest. I believe strongly in universal suffrage. However, I think that to work, the "universe" shouldn't be uneducated and uninformed because it predisposes to abuse by authoritarian populists (study Latin American history much?). Therefore, for the health of our own polity, we need to guarantee a solid public education.

Thread drift, and a rant. Sorry. I don't claim to have an answer to the uninformed comment on nominations. But I do think it is often unfairly lumped in with malicious distortion, which I did indeed chide you for (the lumping) in an earlier comment.

Again, thanks for a nice post.

12:34 PM  
Anonymous binky said...

p.s. And thanks for the reminder that I am old. :P

12:36 PM  
Blogger Pooh said...

Not having studied politics and their history per se, I'm left to wonder when American politics changed from an actual debate about ideas to a zero-sum game that's just about 'winning'. To question the premise of the almost-good 'live' West Wing debate last night, did Lincoln really get up on stage and discuss the issues on the merits, or did it involve the now familiar paradigm of strawmen, slippery slopes and ad hominem attacks? Has it always been this way, or is it a more gradual process, aided by both the increasing complexity of the public sphere and the exploding number of other outlets for people to spend their spare time?

1:16 PM  
Blogger Scott said...

Pooh - Short answer, it's always been this way. Slightly longer short answer - the ways in which it has been this way have changed over time.

The Lincoln example is instructive. Sure, Lincoln got up and gave detailed speeches on difficult issues, and when you read them you're amazed that there was once a place for this kind of thing at a variety of levels of politics (remember the Lincoln-Douglas debates were just for a US Senate seat). But when you read through his works you'll find it interesting just how carefully nuanced his word choices were depending on his location, audience, etc. He was clearly speaking in a way aimed at winning the hearts minds money and votes of those people - not necessarily in that order.

And as to why it's this way - well, our system isn't designed to solve anything, and certainly not anything difficult. The short-term process is merely aimed at creating sets of winners and losers.

1:27 PM  
Blogger Moon said...

Good Lord that's depressing. Thanks Scott.

2:00 PM  
Blogger Pooh said...


Thanks. My underlying query remains open. Did Lincoln tackle Douglas's postions head on, or did he recast them in their weakest possible form? Did he ask Douglas why he hates America? (which, sadly, both sides are increasingly guilty of at present. I'll see your Ann Coulter and raise you an Al Franken...)

Yes this stuff is complicated, but is the American public unable to handle the complexity because it is stupid, or is the public stupid because the 'opinion makers' have decided that comlexity doesn't see newspapers so we no longer get to see all the moving parts?

I guess my frustration is, why do I have to stumble across a blog (amid the cacophony) to get actual substantive discussion instead of mere proxy fight between 'talking points'?

3:19 PM  
Anonymous binky said...

why do I have to stumble across a blog (amid the cacophony) to get actual substantive discussion
Because we are political/legal scholars who while loving the argument for its own sake also know and like each other in real life.

Although, I did want to say "Moon you ignorant slut!" one time. ;)

Seriously, for all the deriding of academics that takes place in the mainstream, this is what we do. (and yes, Moon, I'm including you as a scholar) This is one of the reasons I think blogging is very good for academics, because it reminds us what being public intellectuals is supposed to be about.

And, as for "stumbling across" some blog, maybe we need better marketing. Moon tells me this all the time.

5:03 PM  
Blogger Scott said...

As to Lincoln - no he didn't ever ask why Douglas hated America. But he could be rather cutting at times. But is that really such a bad thing? I mean we are talking about a time when the big issue was slavery. But on the general point, it's probably the case that there was more of a sense of propiety back in those days of yore. Lincoln didn't employ purple heart bandaids for example. But at the same time, the "politics of personal destruction" was pretty common while the Founders were still alive so ... well, maybe it comes and goes in waves.

But a larger thing to keep in mind with Lincoln and all good politicians is that they never do (and really never should if the goal is self-promotion) get caught up in honestly debating the "other guy" (or woman) on their talking points. You want to frame things in your own way - a way that'll benefit your candidacy. And, hopefully, Americans will gravitate towards those messages that promise real answers to the questions of the day.

Though of course that doesn't always happen.

9:20 PM  

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