Outsourcing Linda Greenhouse to Yale
March 8, 2017 (Fault Lines) — While working for the New York Times as the paper’s Supreme Court correspondent, Linda Greenhouse won the Pulitzer Prize and embarrassed the paper along the way as well. After leaving the paper, she ended up at Yale law school despite the fact that she isn’t a lawyer. As I shall explain in more detail, this move was, in a way, the perfect “golden parachute” for both Greenhouse and the Times.
In 2006, Greenhouse got her ass chewed by the Times public editor for fulminations about the failure of her generation (and mine) to do (in my words) “justice.” The editor described a speech by Greenhouse at Harvard this way:
The government, Ms. Greenhouse said on the NPR audio version of her speech, “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” She later added, “I feel a growing obligation to reach out across the ridiculous actual barrier that we seem about to build on the Mexican border. …”
Byron Calame, the public editor, was clearly incensed by Greenhouse’s nonchalance and the Times for tolerating Ms. Greenhouse’s breach of journalistic standards. He wrote:
[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions. During the current term, allowing her to cover court developments that involve the topics on which she voiced opinions in June risks giving the paper’s critics fresh opportunities to snipe at its public policy coverage. This appears, however, to be a risk that Times editors are willing to take.
She wrote titillating copy for the coterie of Times readers who particularly liked to luxuriate in her savaging of Supreme Court justices with whom she and they disagreed. So, Linda Greenhouse was engaged to write for the Times on alternate Thursdays about the Supreme Court and the law.
On March 1st of this year, the Times published a piece by Greenhouse entitled Outsourcing the Constitution. It is predicated upon the en banc opinion of the Seventh Circuit in Glisson v. Indiana Department of Corrections, No. 15-1419 (7th Cir., February 21, 2017) where the court split 6-4 over whether a prisoner’s estate could survive summary judgment when a prisoner died in custody for alleged lack of coordinated medical care by the contract entity that provided medical services to Indiana prisoners.
The facts are nasty, as Andrew Fleischman has described in his great Fault Lines post entitled Seventh Circuit Rules Lethally Neglected Inmate Can Sue. But, as the 6-4 split indicates, the law is very hard.
In her Times piece, Greenhouse goes on a rant about private prisons and private contractors and, of course, Donald Trump. Okay, fine.
Greenhouse also snarls about the fact that Judge Diane Sykes, a Trump favorite, dissented, while praising Chief Judge Diane Woods, an Obama favorite, who wrote the en banc majority opinion. Whatever.
But we have not yet gotten to Greenhouse’s “drive-by shooting.” And before we do, I want you to remember what Senior United States District Judge John Kane, who sits in Colorado, recently wrote for Fault Lines about Supreme Court nominee and Tenth Circuit Judge Neil Gorsuch. Judge Kane wrote, “As the saying goes, we could do worse. A hell of a lot worse. I’m not sure we could expect better, or that better presently exists.”
Now, back to Greenhouse and her article ostensibly about the Seventh Circuit opinion. She writes that
[the Glisson en banc] vote was 6 to 4. This brings me to my second point. On the eve of the Senate confirmation hearing for Judge Neil Gorsuch, President Trump’s Supreme Court nominee, this case is a powerful reminder of why it matters who the judges are.
She then concludes her article with this knifing:
It’s not likely that Judge Gorsuch will be asked to expound on the intricacies of Section 1983 litigation, or that he would answer such a question if a senator thought to ask it. But if we have learned anything in the weeks since Jan. 20, it’s how dependent we are on our judges’ willingness to call out injustice where they find it — under the glare of lights at international airports or in a prison cell’s dark shadows. Compared with the famous cases that will be invoked during the confirmation hearing, the Indiana prison case is small-bore, mundane. But its very ordinariness demands our attention, reminding us that judging is inevitably a mix of law and instinct, and that we need judges with sound instincts more than ever.
The only reason for Greenhouse to write these words is to slime Judge Gorsuch with the supposed “sins” of the four Seventh Circuit judges who disagreed with six of their colleagues on a case with nasty facts but hard law. How in bloody hell does the Seventh Circuit’s decision in Glisson say anything about Judge Gorsuch? Of course, the question answers itself. The Seventh Circuit opinion (and Ms. Greenhouse’s foul article) has nothing whatever to do with Judge Gorsuch’s suitability to sit on the Court.
Having just asked and answered my own question, I will end with another for Ms. Greenhouse to address if she deigns to do so. At long last, madam, have you left no sense of decency?
Richard G. Kopf
Senior United States District Judge (Nebraska)
 Ms. Greenhouse shared with the audience how a recent Simon and Garfunkel concert reminded her of the hopes of her generation, causing her to engage in a “crying jag” that lasted “throughout the entire second half of the concert.”
 This was not the first time Greenhouse had crossed the Times ethical guidelines. As Mr. Calame noted, “There was a more public Times response in 1989 when The Washington Post reported that Ms. Greenhouse and some Post journalists had participated in a march in support of abortion rights. In The Times’s catch-up article, Howell Raines, then the paper’s Washington editor, said of Ms. Greenhouse, ‘She now acknowledges that this was a mistake and accepts the policy.’”
 The district court opinion was written by the distinguished Senior United States District Judge Sara Evans Barker. Judge Barker served as president of the 900-member Federal Judges Association, 2007-2009, and continues her work on the FJA Board of Directors. She is also currently serving on the federal Judicial Conduct and Disability Committee, having recently been appointed by Chief Justice John G. Roberts. In 2004, she was appointed by Chief Justice William H. Rehnquist to serve on the Special Study Committee on Judicial Conduct and Disability (the “Breyer Committee”). Judge Barker served as a member of the Judicial Conference of the United States, its Executive Committee, Long Range Planning Committee, Standing Rules Committee, Budget Committee and the Judicial Branch Committee (ex-officio).
 For many years, I have supervised all of the pro se prisoner litigation in the District of Nebraska. So, please trust me when I say the law in this area is hard.