Saturday, July 2, 2016

In my faulty memory, I am right

A little tedious in the back and forth, the detail, and the inside ball, but quite interesting. From What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy. by Ann Althouse.

The relevance is not so much the point in dispute but the tenor and the dynamic by which the point is being disputed.

With the rise of the Tea Party and the Congressional upsets of 2010 and 2014, with Trump, with the rise of the right across Europe, with Brexit, the governed are making known their displeasure with the low moral quality and low competency of our current generation of "elite." The establishment are throwing a temper tantrum defending their rice bowl.

This minor back and forth between a constitutional lawyer and a clumsy reporter from an "elite" paper captures the themes of the larger stage.

Greenhouse, a reporter for the New York Times, of elevated self-regard, covers the Supreme Court and makes a factual statement about the authorship of a line in a joint Court opinion. She ascribes the sentence to Justice Kennedy.

Althouse, a constitutional law professor at the University of Wisconsin, questions the attribution. Althouse is doing what she does - exploring the facts, the language, logic, and communication.

Greenhouse does what she does, which is to slap down the peasant from the hinterland who dares question her august authority.

The background can be read at the link. Althouse reasonably questions Greenhouse's attribution of a particular line to Justice Kennedy. Greenhouse's reply.
In any event, when Casey was handed down on June 29, 1992, each of the triumvirs read from the part of the joint opinion that he/she had written. Kennedy led off and started his oral announcement with "Liberty finds no refuge..." (causing a good deal of confusion in the courtroom, as you may imagine, since no one yet knew the bottom line of the case.) Souter read from his stare decisis portion, and O'Connor from her undue burden analysis. The authorship of each portion was clear from that public performance. Perhaps you were not in the courtroom. I was. Consequently it would have been completely superfluous for me to write: "As Jeffrey Toobin later reported..." Of course you are completely free to trash my opinions and my writing style. I would caution you against challenging my facts. Yours, Linda
The reporter is basing her claim to the facts on the memory of the court event twenty-four years ago and is conveying her memory in a fashion that is both demeaning of her correspondent and brooks no dispute.

This is the attitude of the elites which I think is sticking in everyone's craw and leading to such wild politics. The idea that the elite can make unsubstantiated claims, fail to perform their function, and then seek escape from accountability by asserting the privilege of their position without actually addressing the facts and consequences.

Because, as Althouse points out,
Whatever feels clear within Greenhouse's memory, the fact is, it wasn't Justice Kennedy who "led off," it was Justice O'Connor. And when Kennedy got his turn, he did not — as Greenhouse put it — "start[] his oral announcement with 'Liberty finds no refuge....'"

I'm listening to the announcement recording and reading and searching the transcript, and it doesn't begin with or even contain the sentence "Liberty finds no refuge in a jurisprudence of doubt." That's how the written opinion begins, but Greenhouse seems to have constructed a false memory of what she experienced in her privileged position in that courtroom a quarter century ago.

I know! I've been cautioned against challenging her facts. But I've got to do it. I've got the transcript.
Greenhouse made a factual assertion. Althouse disputed that assertion. Greenhouse attempted to support her own assertion by a claim on her own inviolable memory of the event. Greenhouse also couched her argument in arrogant privilege ("perhaps you were not in the courtroom") and passive threats ("I would caution you against challenging my facts.")

But the record shows that Greenhouse's memory is faulty and Althouse is correct that there is no basis for Greenhouse for having made her original assertion.

A picayune dispute but over worthy principles (what constitutes facts, accuracy, truth). As I said, it is not the particular argumentative point that is of note but the arrogance of the vested elite wishing to be held free from accountability that is remarkable. Althouse deserves an apology. It will be interesting whether one is forthcoming or whether Greenhouse will double down on arrogance and privilege.

UPDATE: Well, double down it is. From More email from Linda Greenhouse: "Ann, I guess it's fair to say that each of us was right and each of us was wrong." Greenhouse acknowledges that Althouse is correct that Greenhouse had created a false memory, "I have to say I'm really surprised at my mis-memory of the Casey hand-down -- I would have sworn it on a stack of U.S. Reports." But she can't leave it at that, Greenhouse hen concludes that "I guess it's fair to say that each of us was right and each of us was wrong." Althouse summarizes:
Confronted with proof that she'd made a mistake and after cautioning me about challenging her facts, Greenhouse took the position that she and I were both wrong and right, that somehow we'd come out even. I'm not agreeing to that. I didn't say anything that was wrong.
One of Althouse's commenters observes,
Probably the most troubling take-away from this exchange is the clear evidence that Ms. Greenhouse is unable to distinguish her opinion from fact. As far as I can tell, Althouse is "wrong" because she didn't accept Ms. Greenhouse's opinion as fact.
Yes, that would seem to be kind of a hurdle for a journalist. But perhaps among a generation influenced by postimpressionism and New Journalism, perhaps maintaining a clear distinction between emotional opinions and objective truths is too much of an effort.
Another commenter points out that
This is not the first time that Ms Greenhouse has had a public tiff over the fact/opinion distinction, especially when those "opined facts" in question turn out to be hers.
That's back a decade ago, so the displacement of facts for opinion seems to be a long-standing issue for Greenhouse . An issue which neither Greenhouse or the New York Times seems to deem worth addressing. Perhaps the new logo is actually, "All the opinions fit to print" and no one told us of the change.

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