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Sunday, October 01, 2017

An Absurdly Long Twitter Discussion of the Laurie Goodstein/NYT Story on Amy Barrett, and its Defensive Defenses

The New York Times on Thursday published a piece by Laurie Goodstein about religion and the Amy Barrett nomination, with the awfully vague headline (not written by Goodstein, although it is a fair description of the piece) "Some Worry About Judicial Nominee's Ties to a Religious Group." The story is unclear on whether these "some people" suggested the piece to Goodstein, and if so which "some people" did so. It quotes two law professors, and perhaps one of them suggested the story to her, but reporters go to law professors all the time for the necessary ventriloquism once they have gotten the idea for a story. It also links to a report by the Alliance for Justice, which one assumes does try to feed the occasional story to a reporter and is a more likely suspect. Or perhaps it was a bank shot: interest group suggests story to congressional staffer, who then suggests story to reporter. Or maybe it was just an inspired piece of independent reportorial digging. The gist of the story is twofold: 1) Barrett belongs to a lay Christian group called People of Praise, whose ideas and practices are, to use the standard contemporary language of plausibly deniable accusation, "troubling." 2) Barrett didn't disclose her membership in the group to the Judiciary Committee, "though many nominees" have disclosed similar memberships "in the past."

I hesitated before writing critically about this story at first, despite my interest in these issues, because I thought that point number 2, if true, would indeed be "troubling." The rest of the story was, with respect, weak at best. It certainly did not say anything more about how Barrett would perform as a judge. It quoted one professor suggesting that "These groups can become so absorbing that it’s difficult for a person to retain individual judgment," but that is a rather general statement and not grounds enough for serious concern. (And I wonder how it applies to other groups in general.) Moreover, it treated as significant (and, I think, as a foundation for that law professor quote) the apparent fact that "Members of the group swear a lifelong oath of loyalty, called a covenant, to one another." As many students of religion pointed out after the story was published, oaths and vows of this sort are commonplace within all sorts of religious communities; there is nothing terribly unusual or ominous about that. And the story essentially swallowed whole the AFJ line about Barrett's co-authored piece, now some 20 years old, on Catholic judges and recusal in death penalty cases, a line that many law professors have already suggested misreads that article. It added the AFJ's description of Barrett as having "backed away from that position," which misreads both the piece and Barrett's testimony. The piece ended with a classic suspicion-raising question by another law professor: "I’m concerned that this was not sufficiently transparent . . . . We have to disclose everything from the Elks Club to the alumni associations we belong to — why didn’t she disclose this?" 

My hesitation was unwarranted. The story does not say that Barrett was required to disclose her association with the group, but is worded in such a way that the average reader might so conclude, a reading that is enforced by the professorial quote that closes the piece. But as Ed Whelan has pointed out, "[T]he Senate questionnaire, presumably because of concerns about improper inquiry into a nominee’s religious beliefs (or lack thereof), doesn’t ask about membership in religious organizations. . . . So the simple answer to the climactic question...—'why didn’t she disclose this [membership]?'—is that the questionnaire didn’t ask for it." So the one thing in the story that I thought gave grounds for concern turned out to be ungrounded. And the rest of the story, as I have already suggested, was deeply flawed. It makes it hard to read the story as anything other than a successful attempt, perhaps by an interest group, to plant a flawed critical story about a nominee in a widely read and influential newspaper. If there was a story here, it was probably that, and Goodstein could and should have written about who, if anyone, fed her the story, since that information would have given readers more information with which to judge the story and more of an education about the interplay between interest group tactics and the judicial confirmation process. As a general rule, however, reporters prefer not so say much about these mechanics in their pieces, not least because these groups are useful sources for stories and may insist as a condition of feeding the story that their fingerprints are kept off the story. Reporters should strenuously resist such conditions. 

My Prawfs co-blogger Rick has a Mirror of Justice post criticizing the story. But that's not the end of the matter. Lots of people criticized the story, including many law professors who are interested in religion or law and religion, and who have various positions on that subject and come from various places on the political spectrum. On Twitter, Goodstein defended the story, starting with the line, "Seems my piece struck a chord, given defensive reaction by the nominee's allies on Twitter." As I said, however, it wasn't just "the nominee's allies" who criticized the piece. And their reaction was not "defensive:" it was critical, because they thought it was a poor piece. "Striking a chord," of course, can mean a reporter got something right; but it can also mean that the piece provoked reactions because it was flawed--as her piece in fact was. And, rather oddly, a fellow religion reporter, Daniel Burke of CNN, rode to Goodstein's defense, writing, "Looks like a well-coordinated response" to the piece, naming the Federalist Society as the presumed coordinator. This being Twitter, debate ensued.

Both the piece and the defenses of the piece raised various serious concerns for me, both on the substance and on the general issue of how reporters should or shouldn't use their Twitter feeds. For my sins, I have become more active on Twitter lately. And here is a Storified and collection of my slightly lengthy thread of Twitter posts responding to the debate. It would be long even as a blog post; as a Twitter response, it's Proustian. Clearly, the ballyhooed impending move to a 280-character length for tweets wouldn't have done much to help in this case. But I had a number of thoughts on the debate, wanted to get things right, and wanted to do so in the medium in which the debate took place. The gist of my response is roughly this:

1) Given the nature of Twitter and of contemporary politics and public discourse, doubtless there were plenty of hostile and unbalanced responses to the story. But given the number and variety of people who offered serious and well-grounded critical responses to the piece--especially those interested in law, religion, and the complex relationship between nominees' faith and their fitness for the bench--it's not enough to characterize the critical response to Goodstein's piece as "defensive" or as being about support for Barrett. Many of us just thought it was a poor story--and for good reasons, as I have written above. In particular, once the only genuinely troubling charge raised by the story--the non-disclosure angle--is shown to be dubious, all that remains is a repetition of the errors that have already been made in coverage of this nomination, along with questions about the religious group grounded in suppositions--like the idea that there is something unusual or troubling about communal vows of fealty within religious groups--about which a religion reporter, of all people, should know better. I am not suggesting Goodstein had no right to report and publish the story, or even to have stories fed to her by interest groups (if this is what happened). But it could have been reported much better, shown more knowledge about religion itself, done more to describe the genesis of the story and any interest group involvement in it, and avoided the suggestive and ominous framing and language that suffuses the piece. 

2) Burke's defensive attack on criticisms of the piece was both poor in substance and odd as a general matter. It was odd because a religion reporter need not be defensive on behalf of a colleague or competitor, and should have examined the substance of the piece, which I have suggested was flawed, instead of engaging in blanket accusations about the story's critics. And it was doubly odd because, ideally, when writing on Twitter (or anywhere else), a reporter should either stick to his or her area of expertise or do enough serious reporting to justify any accusations outside that expertise. I can't speak for everything that everyone said in response to Goodstein's story--who could?--but it is clear that many of us who raised serious criticisms of the story were not engaging in a "coordinated" response, whether led by the Federalist Society or by anyone else. Burke's defense of his charge of a coordinated response is weak and in some cases erroneous. And despite its general knowing (and cliched) talk about the Federalist Society as "the real power players in DC" (emphasis added: "the?" Aren't there others?), it betrays little knowledge of how that group actually functions. It is true that there are executives within the Federalist Society who are playing a role in suggesting judicial nominees to this administration, just as other interest groups and "power players" do so in every administration, Democratic or Republican. And it is also true--unfortunately so, in my view--that there are some FedSoc executives who enjoy engaging in DC politics, and use their salaried positions at the Federalist Society as a useful and comfortable perch from which to do so. But, as with the American Constitution Society (which also has some executives who enjoy engaging in "power politics," again unfortunately as far as I am concerned), the ground-level experience of members of those groups, including law professors, is far more mundane than that. When I, for one, join either group (I have been a member of both groups at various times, depending on how I felt about paying dues in a given year; although I don't always do so, I prefer to join both groups or neither at any given time), it has more to do with wanting to receive the groups' publications than with their views. I don't get instructions or suggestions from either group, and if I did I would ignore them. Serious critics of the Federalist Society understand the difference between what a few of its executives in DC get up to and how the group as a whole operates, and the minimal influence it has on many or most of its members. There are things one may dislike or worry about with respect to either group--personally, I am not at all crazy about the elite networking aspects of either group, or about judges or hiring committees or anyone else using membership as a proxy or as a qualification or disqualification for clerkships, teaching jobs, judicial nominations, and such--but one ought to have some understanding of those groups rather than lazily treating them as bugaboos. Burke is a religion reporter; there's no reason for Burke to know any of this. But he should have done the work of reporting on it before launching accusations. Failing some serious reporting, he could and should have remained silent, or focused on the substance of Goodstein's story alone.

3) There is a broader question here that troubles me greatly: How, if at all, should non-opinion reporters (or reporters for partisan news outlets, or opinion columnists for that matter) use their Twitter feeds? I was a journalist, very briefly, and happily before the rise of social media and the current desperate straits of major and minor media institutions. I remain interested in the profession and its troubles. It seems clear to me, both from their conduct and from the various newsroom memos floating around and from media reporting on the subject, that reporters these days are positively encouraged to have Twitter feeds, and possibly encouraged to make those feeds exciting or controversial, rather than simply using them to link without commentary to their published work. Much of that pressure comes not just from editors, but from people on the other side of journalism's church-state divide: publishers, marketing departments, and various business-side news industry "consultants." It's clear that even many "straight" news reporters feel free to opine freely on Twitter, both within and beyond their actual expertise and with or without doing the reporting work to support their opinions. I can understand the "why" of the matter, which includes media institutions' desperate desire to survive in a fragmented, social-media-heavy environment, in part by seeking "eyeballs" and attention. But I think these tendencies encourage serious departures from journalistic professionalism and ethics and, for the sake of short-term gains, end up eroding trust in those institutions and imperiling them and their practices in the long run. I appreciate that my brief time in the profession came long before the rise of social media. But when I was doing things, the norms of the profession encouraged reporters to ignore or resist pressures coming from the non-editorial side of the business, to avoid public opining, and to stick to their knitting. If I had been told back then that in addition to reporting and writing for my paper, I would be expected to trawl for eyeballs by starting a Twitter feed and keeping it "interesting," and especially if that pressure came from someone on the non-editorial side of the organization, I would have ignored the instruction and possibly told that person to go to hell. Some of the most successful and prominent journalists on Twitter and other social media, including those whose positions at major media institutions mean they have some power to resist such pressures, have clearly chosen a different path. I think it's the wrong path. As I write in my collection of Twitter posts:

Individual journalists in non-opinion positions (and those with opinion positions as well) urgently need to seriously rethink the nature of their use of Twitter. They need to resist far more strenuously the temptations and seductions of having a social media "platform." They need to push back far more against editors, publishers, "consultants," marketing and business departments, newsroom memos, and peer pressure urging them to do and say more than they should on social media.

Read it all--if you have a couple of hours to spare. (I should note that whatever substantive problems it has, my collection of Tweets has one or two other errors. I refer "John Leo" rather than "Leonard Leo," for example. Mea culpa. I am duly aware that if I had written the screed on the blog rather than Twitter, I would have been able to correct such errors. And I'm aware that the piece's length violates every norm of Twitter, although I'm very happy to violate the norms of Twitter--a medium that I despise, despite my increasing use of it. That I use Twitter at all is, I hope, a matter of weakness, not hypocrisy.)  


Posted by Paul Horwitz on October 1, 2017 at 09:01 AM in Paul Horwitz | Permalink


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