The smoke drifting out of your computer over the weekend was not the result of a fried motherboard but the scent of bloggers setting themselves on fire in response to Nina Totenberg’s NPR Morning Edition Friday, March 10, dispatch. Totenberg had attended a speech at Georgetown University given the night before by retired Supreme Court Associate Justice Sandra Day O’Connor in which O’Connor invoked the word “dictatorship” to describe the direction the country may be headed if Republicans continue to attack the judiciary.
O’Connor’s voice was “dripping with sarcasm,” says Totenberg. But the retired justice didn’t name Rep. Tom DeLay, R-Texas, or Sen. John Cornyn, R-Texas, as the leading perps, in part because she didn’t need to. (See Rawstory.com’s transcription of Totenberg’s NPR segment.)
Filled with fury, the bloggers wanted to know why the mainstream media—outside Keith Olbermann on MSNBC’s Countdown—hadn’t mentioned O’Connor’s broadside. The only newspaper stories I could find on the topic today were from England’s Guardian, with Julian Borger reporting and writer Jonathan Raban filing an opinion piece on it.
The bloggers were right, of course. A retired justice needn’t predict the end of democracy to make news. All she has to do is burp. So, why didn’t the U.S. press react more strongly to her comments?
Obviously, the media should have. The press has its excuses. It doesn’t like to form a pack to chase somebody else’s story—until it’s damn good and ready. The press is also lazy about breaking news on Friday—and doubly lazy about picking up a radio story. Your average reporter (and average media) has better things to think about on Friday than work. But if you assume that the press gave the O’Connor story a bye because they’re part of the Bush’s royal court, you’re wrong.
To begin with, the Georgetown talk wasn’t the first in which O’Connor had chided congressional meddlers, and it won’t be the last. Give a gander to her 2003 speech before the Arab Judicial Forum titled “The Importance of Judicial Independence.” Last July, the Washington Post’s Blaine Harden transcribed similar sentiments from the justice at the annual 9th Circuit Judicial Conference in Spokane, Wash. O’Connor, who had announced her departure from the court, didn’t use the “D” word or name any names in Spokane, but she lamented the threat posed to an independent judiciary by “some members of Congress.” Ralph Thomas of the Seattle Times quoted her as saying, “in our country today, we’re seeing … a desire not to have an independent judiciary.”
The O’Connor under-coverage has much to do with a press corps unaccustomed to reporting the views of a former justice. Courtly manners prohibit justices from indulging in political speak while on the bench, and seeing as most justices leave the court in a hearse, there’s little in the way of a modern precedent for how a voluble justice still in her intellectual prime should conduct herself, and how the press should cover her. O’Connor seems to be feeling her way to a polite space where she can speak her mind about issues without waxing so political that she embarrasses her former colleagues and the institution. In that sense, O’Connor is a lot like former President Bill Clinton, who, after six years of civilian life, is still groping—almost sorry about the word choice—for a respectful yet meaningful position from which to criticize the current administration.
If Totenberg captured the tenor of O’Connor’s Georgetown talk, it may mark her passage from justice to professional ex-justice. In July, she encouraged her fellow judges to “try to make a friend out of the members of Congress. … Try to help them understand the needs of judges. It’s much harder to turn a cold shoulder on someone you know.” Now it she sounds as if she’s abandoned the charm tour and wants to feed intrusive politicians to the angry end of a wood chipper.
Addendum, March 14, 11 a.m.: As recently as November 2005, O’Connor gave a similar speech about judicial independence, as Tony Mauro of Legal Times writes:
O’Connor’s speech Nov. 7 to the American Academy of Appellate Lawyers in Washington, D.C., was a rip-snorting defense of judicial independence that criticized—without naming them—former House Majority Leader Tom DeLay, R-Texas, Sen. John Cornyn, R-Texas, and even the late president Franklin Delano Roosevelt, whom she described as “the fellow on the dime.”
An ear-witness to the Georgetown talk tells me O’Connor reused the Roosevelt line, indicating that elements of the talk are part of her new stump speech.
Addendum II, March 14, 10 p.m.:What a difference a year makes! Back in April 2005, Newsweek captured O’Connor trying to make nice with some of her congressional foes by treating them to lunch (“sandwiches and a salad sprinkled with walnuts”) and conversation at the court.
O’Connor has finally taken John Riggins’ advice. Remember in 1985 when the Redskins running back said, “Loosen up, Sandy baby,” to her at a formal dinner? What will O’Connor have to say before Riggins reverses his advice to “Tighten up, Sandy baby”? Send your predictions to email@example.com. (E-mail may be quoted by name unless the writer stipulates otherwise.)