In both instances, Richmond’s political bias made him tone-deaf to the context and import of Sotomayor’s remarks. Bear in mind that he was looking not simply to understand the judge, but to expose her supposed hidden agenda.
Take the Duke panel first: most of the video, for obvious reasons, held little interest for Richmond. My guess is that you could fit the number of people who have actually watched the whole thing into a Motel Six bathtub. Most of the talk concerned how to make your application for a highly competitive clerkship stand out. Late in the discussion, a student asked the panel to compare clerking at the district-court (or trial-court) level and clerking at the appellate level. Sotomayor replied that clerks serving trial judges are often asked to rapidly research legal questions that develop during a trial, and to assist the judge in applying the law to the facts of that particular case. The appellate courts, on the other hand, are in the business of making rulings that are “precedential,” she said, in that rulings at the appellate level serve as examples, reasons, or justifications for future proceedings in lower courts. She went on to make the ostensibly controversial remark that students who planned careers in academia or public-interest law ought to seek a clerkship at the appellate level, because that’s where “policy is made.”
This is absolutely true, in the sense she intended: precedential decisions, by definition, make judicial policy. They provide the basic principles that guide future rulings. But both Sotomayor and her audience were acutely aware of how charged the word policy has become in matters concerning the judiciary—conservatives accuse liberal judges, not without truth, of trying to set national policy from the bench. This accusation has become a rallying cry for those who believe that the Supreme Court justices should adhere strictly to the actual language and original intent of the Constitution, instead of coloring the law with their own modish theories to produce such social experiments as school desegregation, Miranda warnings, abortions on demand, and so forth. The polite laughter that caught Richmond’s ear was recognition by the law students that the judge had inadvertently stepped in a verbal cow pie. She immediately recognized what she had done, expressed mock horror at being caught doing so on tape, and then pronounced a jocular and exaggerated mea culpa, like a scoring runner in a baseball game tiptoeing back out onto the diamond to touch a base that he might have missed. Sotomayor went on to explain in very precise terms how and why decisions at the appellate level have broader intellectual implications than those at the lower level. It is where, she said, “the law is percolating.”
Seen in their proper context, these comments would probably not strike anyone as noteworthy. If anything, they showed how sensitive Sotomayor and everyone else in the room had become to fears of an “activist court.”
A look at the full “Latina woman” speech at Berkeley reveals another crucial misinterpretation.
To his credit, Richmond posted as much of the speech as copyright law allows, attempting to present the most important sentence in context. But he still missed the point. Sotomayor’s argument was not that she sought to use her position to further minority interests, or that her gender and background made her superior to a white male. Her central argument was that the sexual, racial, and ethnic makeup of the legal profession has in fact historically informed the application of law, despite the efforts of individual lawyers and judges to rise above their personal stories—as Sotomayor noted she labors to do. Her comment about a “wise Latina woman” making a better judgment than a “white male who hasn’t lived that life” referred specifically to cases involving racial and sexual discrimination. “Whether born from experience or inherent physiological or cultural differences… our gender and national origins may and will make a difference in our judging,” she said. This is not a remarkable insight, nor is it even arguable. Consider, say, how an African-American Supreme Court justice might have viewed the Dred Scott case, or how a female judge—Sotomayor cited this in the speech—might have looked upon the argument, advanced to oppose women’s suffrage, that females are “not capable of reasoning or thinking logically.” The presence of blacks and women in the room inherently changes judicial deliberation. She said that although white male judges have been admirably able on occasion to rise above cultural prejudices, the progress of racial minorities and women in the legal profession has directly coincided with greater judicial recognition of their rights. Once again, her point was not that this progress was the result of deliberate judicial activism, but that it was a natural consequence of fuller minority and female participation.
One of her central points was that all judges are, to an extent, defined by their identity and experience, whether they like it or not.
“I can and do aspire to be greater than the sum total of my experiences,” she said, “but I accept my limitations.”
Richmond seems a bright and fair-minded fellow, but he makes no bones about his political convictions or the purpose of his research and blogging. He has some of the skills and instincts of a reporter but not the motivation or ethics. Any news organization that simply trusted and aired his editing of Sotomayor’s remarks, as every one of them did, was abdicating its responsibility to do its own reporting. It was airing propaganda. There is nothing wrong with reporting propaganda, per se, so long as it is labeled as such. None of the TV reports I saw on May 26 cited VerumSerum.com as the source of the material, which disappointed but did not surprise Richmond and Sexton.
Both found the impact of their volunteer effort exciting. They experienced the heady feeling of every reporter who discovers that the number of people who actually seek out new information themselves, even people in the news profession, is vanishingly small. Show the world something it hasn’t seen, surprise it with something new, and you fundamentally alter its understanding of things. I have experienced this throughout my career, in ways large and small. I remember the first time I did, very early on, when I wrote a magazine profile of a promising Baltimore County politician named Ted Venetoulis, who was preparing a run for governor of Maryland. I wrote a long story about the man, examining his record as county executive and offering a view of him that included both praise and criticism. I was 25 years old and had never written a word about Maryland politics. I was not especially knowledgeable about the state or the candidates, and the story was amateurish at best. Yet in the months of campaigning that followed, I found snippets from that article repeatedly quoted in the literature put out by Venetoulis and by his opponents. My story was used both to promote him and to attack him. To a large and slightly appalling extent, the points I made framed the public’s perception of the candidate, who, as it happened, lost.
Several hours of Internet snooping by Richmond at his upstairs computer wound up shaping the public’s perception of Sonia Sotomayor, at least for the first few weeks following her nomination. Conservative critics used the snippets to portray her as a racist and liberal activist, a picture even Richmond now admits is inaccurate. “She’s really fairly moderate, compared to some of the other candidates on Obama’s list,” he says. “Given that conservatives are not going to like any Obama pick, she really wasn’t all that bad.” He felt many of the Web sites and TV commentators who used his work inflated its significance well beyond his own intent. But he was not displeased.
“I was amazed,” he told me.
For his part, Sexton says: “It is a beautiful thing to live in this country. It’s overwhelming and fantastic, really, that an ordinary citizen, with just a little bit of work, can help shape the national debate. Once you get a taste of it, it’s hard to resist.”
I would describe their approach as post-journalistic. It sees democracy, by definition, as perpetual political battle. The blogger’s role is to help his side. Distortions and inaccuracies, lapses of judgment, the absence of context, all of these things matter only a little, because they are committed by both sides, and tend to come out a wash. Nobody is actually right about anything, no matter how certain they pretend to be. The truth is something that emerges from the cauldron of debate. No, not the truth: victory, because winning is way more important than being right. Power is the highest achievement. There is nothing new about this. But we never used to mistake it for journalism. Today it is rapidly replacing journalism, leading us toward a world where all information is spun, and where all “news” is unapologetically propaganda.
In this post-journalistic world, the model for all national debate becomes the trial, where adversaries face off, representing opposing points of view. We accept the harshness of this process because the consequences in a courtroom are so stark; trials are about assigning guilt or responsibility for harm. There is very little wiggle room in such a confrontation, very little room for compromise—only innocence or degrees of guilt or responsibility. But isn’t this model unduly harsh for political debate? Isn’t there, in fact, middle ground in most public disputes? Isn’t the art of politics finding that middle ground, weighing the public good against factional priorities? Without journalism, the public good is viewed only through a partisan lens, and politics becomes blood sport.
Television loves this, because it is dramatic. Confrontation is all. And given the fragmentation of news on the Internet and on cable television, Americans increasingly choose to listen only to their own side of the argument, to bloggers and commentators who reinforce their convictions and paint the world only in acceptable, comfortable colors. Bloggers like Richmond and Sexton, and TV hosts like Hannity, preach only to the choir. Consumers of such “news” become all the more entrenched in their prejudices, and ever more hostile to those who disagree. The other side is no longer the honorable opposition, maybe partly right; but rather always wrong, stupid, criminal, even downright evil. Yet even in criminal courts, before assigning punishment, judges routinely order presentencing reports, which attempt to go beyond the clash of extremes in the courtroom to a more nuanced, disinterested assessment of a case. Usually someone who is neither prosecution nor defense is assigned to investigate. In a post-journalistic society, there is no disinterested voice. There are only the winning side and the losing side.
There’s more here than just an old journalist’s lament over his dying profession, or over the social cost of losing great newspapers and great TV-news operations. And there’s more than an argument for the ethical superiority of honest, disinterested reporting over advocacy. Even an eager and ambitious political blogger like Richmond, because he is drawn to the work primarily out of political conviction, not curiosity, is less likely to experience the pleasure of finding something new, or of arriving at a completely original, unexpected insight, one that surprises even himself. He is missing out on the great fun of speaking wholly for himself, without fear or favor. This is what gives reporters the power to stir up trouble wherever they go. They can shake preconceptions and poke holes in presumption. They can celebrate the unnoticed and puncture the hyped. They can, as the old saying goes, afflict the comfortable and comfort the afflicted. A reporter who thinks and speaks for himself, whose preeminent goal is providing deeper understanding, aspires even in political argument to persuade, which requires at the very least being seen as fair-minded and trustworthy by those—and this is the key—who are inclined to disagree with him. The honest, disinterested voice of a true journalist carries an authority that no self-branded liberal or conservative can have. “For a country to have a great writer is like having another government,” Alexander Solzhenitsyn wrote. Journalism, done right, is enormously powerful precisely because it does not seek power. It seeks truth. Those who forsake it to shill for a product or a candidate or a party or an ideology diminish their own power. They are missing the most joyful part of the job.
This is what H. L. Mencken was getting at when he famously described his early years as a Baltimore Sun reporter. He called it “the life of kings.”