Mimesis Law
19 September 2017

Greenhouse Gas

January 11, 2017 (Fault Lines) — Scientists tell us that greenhouse gases (water vapor (H2O), carbon dioxide (CO2), methane (CH4) and nitrous oxide (N2O)) are polluting our atmosphere. Today, I write about a different sort of pollution, although what I write about is pretty close to methane.

And that brings me to the gassy writing of Linda Greenhouse. Of course, I refer to the Pulitzer Prize winning former Supreme Court correspondent for the New York Times.

After taking an early buy-out from the NYT, Ms. Greenhouse landed a gig teaching at Yale law school where her husband also teaches.* Ms. Greenhouse is the Senior Research Scholar in Law, Knight Distinguished Journalist in Residence, and Joseph Goldstein Lecturer in Law. She writes a biweekly column about her views, often focusing on the Court. With that by way of introduction, I turn to the focal point of this post.

At year’s end, Chief Justice Roberts issued his yearly report. I have no doubt that it was personally written by the Chief as it has all the hallmarks of his remarkable writing skills.

The report begins this way:

As winter approached in late 1789, Justice David Sewall of the Massachusetts Supreme Judicial Court received unanticipated correspondence from President George Washington. Washington informed Sewall that he had been appointed and confirmed as United States District Judge for the District of Maine, then still part of Massachusetts. The matter was not open to discussion; Sewall’s commission was enclosed. Writing from his home in York, Sewall noted that the appointment was “unsolicited and unexpected,” and he expressed concern that his service as a state supreme court justice would not fully prepare him for the task. “In this new appointment,” Sewall explained, “the Judge is to stand alone, and unassisted, and in some instances in matters of the greatest magnitude—Such as relate to the life of Man.” Grateful for the privilege of national service and the honor of appointment, he hoped to vindicate the President’s confidence and secure the “approbation of my fellow Citizens.” “All I can promise on the occasion, is, that I will endeavour to merit them—by striving to discharge  the duties of the office with fidelity and impartiality according to the best of my abilities.”

Chief Justice John Roberts, 2016 Year-End Report on the Federal Judiciary (December 31, 2016).

The Chief’s report is entirely devoted to the work of federal district judges. It is a beautiful tribute and a much appreciated “pat on the back” for those federal judges who labor in our trial courtrooms. But, I suppose I am biased.

Speaking of bias, Ms. Greenhouse, in a snide response, dismissed the Chief’s report as “a paean to federal district judges.” See Linda Greenhouse, What the Chief Justice Should Have Said, New York Times, (January 5, 2017). No doubt thinking that the district courts are the third tier toilets of the federal judiciary, Greenhouse presumed to tell the Chief Justice what he should have reported upon.

She wanted the Chief Justice to take a swing at the Republicans for failing to confirm President Obama’s nomination to fill the vacancy caused by Justice Scalia’s death as opposed to waiting for the next President to make the nomination. That is:

What he did not mention was that for nearly all of the year on which he was reporting, the Supreme Court seat made vacant by Justice Antonin Scalia’s death last February was kept empty by the Senate Republicans’ refusal to permit President Obama to fill it.

. . .

I’ll grant that it would have been a delicate matter for the chief justice to wade into national politics at this almost impossibly freighted moment, weeks before he is to administer the presidential oath to Donald J. Trump.

. . .

But it seems to me that if there was ever a moment to put delicacy aside, this was it. If the court isn’t suffering internally from the prolonged vacancy, it is surely suffering in the eyes of the public. People don’t have to be familiar with the intricacies of the docket to regard the court as little more than a prize of presidential politics, perhaps a tarnished prize at that.

. . .

There should be nothing partisan about the chief justice of the United States’ declaring that keeping a Supreme Court seat vacant for a year (actually, it certainly will turn out to be more than a year) so that an incumbent president couldn’t fill it was an unfortunate development that should not be permitted to become the norm. If making such a statement is regarded as unduly partisan, we’re in even worse trouble than I thought.

Id.

Ms. Greenhouse endeavored to support her idiotic criticism by referring to Chief Justice Rehnquist’s book on impeachments and Rehnquist’s defense of judicial independence.  But even a toddler (or a 1L at Yale) would not be persuaded. Her references to Rehnquist (for whom Chief Justice Roberts clerked) and his actions have no similarity to her crazy demand that Chief Justice Robert’s scream at and school the United States Senate on how and when the Senate must hold judicial confirmation hearings for Supreme Court nominees. I know that Ms. Greenhouse lacks a law degree, but she knows better than to compare an apple with an orange.

As I have said before at Fault Lines, Chief Justice John Roberts is a “smooth operator” who is “dedicated to safely steering the Court through raging [political] tempests and protecting the Court as a co-equal branch of our government.” This cynic suspects that Greenhouse dislikes Roberts precisely because he is so very good at what he does—and, in the absence of a pending case, that includes staying the hell out of a political fight “to the death” between the President and the Senate.

In truth, Linda Greenhouse, who is extremely smart, is terrified that the progressive vision for the Court is in grave danger. That fear is entirely legitimate. It is, however, no reason lash out at Chief Justice John Roberts for the electoral failures of Secretary Clinton and progressives like Greenhouse everywhere. After all, and as President Obama boasted in 2009, “elections have consequences” and that is true even at Yale.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*His name is Eugene R. Fidel. Perhaps unfairly, their relationship got her into hot water when she covered a Supreme Court case involving a Guantanamo detainee where her husband had filed an amicus brief opposing the government and the Times failed to disclose their relationship. See, e.g., Clark Hoyt, Public and Private Lives, Intersecting, New York Times, Public Editor (January 20, 2008) (critiquing  the paper, but not Greenhouse who had disclosed the matter to her editors, Hoyt wrote: “But Lee Wilkins, a professor of journalism at the University of Missouri and editor of The Journal of Mass Media Ethics, said, ‘Conflict of interest is practically the only place in ethics where perceptions matter almost as much as what is the case.’ Like it or not, the perception is that Greenhouse is writing about something in which her husband is a player — and The Times isn’t telling the public. Newspapers routinely question public officials in similar circumstances.”)

7 Comments on this post.

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  • Anon
    11 January 2017 at 1:00 pm - Reply

    These are the people most responsible for the election of Donald Trump. It’s not the deplorable a, or the people who prefer to watch MMA and football rather than Meryl Streep. It’s the left wing loons who have taken over the Democratic Party, at the federal, state and local level. No compromise, no working with the other side, vilify all conservatives, you are with the program on everything,and I mean everything, or else you’re an apostate. And yet they don’t see it.

    Linda Greenhouse is among that class of disaffected liberal who can’t comprehend what has just taken place. Thank God we at least have a judiciary that does a pretty good job keeping a middle course, while the remaining branches of Government pitch, roll and yawl to extremes. John Roberts may be conservative, but he is able to navigate pretty steadily in the middle. That seems to be a much harder trick than I previously thought.

    Here we all are, some of us anyway, having thought the Republican Party was near extinction, and all along its been the other side. What fools. Look at the demonstrations and outbursts of these crazies at the confirmation hearings. Frankly, I thought both Jeff Sessions (despite his big ears) and Rex T. Have handled themselves quite well.

    And now I have a confession to make. I’m a Democrat. Please try not to hold that against me.

    • Richard G. Kopf
      11 January 2017 at 6:43 pm - Reply

      Anon.,

      Nicely written.

      Only one slight quibble: The Republican Party, at least as I knew it, is extinct.

      All the best.

      RGK

  • stevie g
    11 January 2017 at 2:16 pm - Reply

    Geez, I was SO sure that Linda Greenhouse was an alias. Flatulence aside, CJ Roberts had a chance to get rid of Obamacare. He didn’t and now look at what is going to happen.

    • Richard G. Kopf
      11 January 2017 at 6:52 pm - Reply

      stevie g.,

      I have a guess. CJ Roberts couldn’t care less about Obamacare. However, he has a deep and abiding interest in the institutional survival of the Court as a mostly apolitical body.

      All the best.

      RGK

      PS “Flatulence aside” caused me to laugh aloud!

  • MOK
    12 January 2017 at 5:09 pm - Reply

    Thank you for reminding us of, and defending federalism and the separation of powers, a foundation which too many “extremely smart” talking heads willfully forget, never knew about, . . . .or maybe they don’t care?

  • Anon
    13 January 2017 at 1:52 am - Reply

    “No doubt thinking that the district courts are the third tier toilets of the federal judiciary…”

    Ironically(?), District Judges are the ones who don’t need a second vote to take a pee break….

    • Richard G. Kopf
      13 January 2017 at 12:21 pm - Reply

      Anon.,

      My goodness, you are correct. That had never occurred to me before.

      It is true. I exercise my unitary power to pee when I want all the time. I feel much better now knowing that I hold such singular power in my very large hands.

      Thanks for making me feel better. All the best.

      RGK