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Amicus filings and conflicts

By Mark Obbie

New York Times public editor Clark Hoyt sides with Linda Greenhouse and Times editors in a dispute over an alleged conflict of interest. Hoyt articulates sensible policies, and takes a justified shot at Greenhouse's accuser. But what he doesn't articulate clearly enough is an ethics policy that responds directly the central questions posed by the complaint.Hoyt's column and the complainant's blog posts (linked below) describe the background to the dispute in detail. In a nutshell: Greenhouse critic and former Antonin Scalia clerk M. Edward Whelan III, president of the Ethics and Public Policy Center, has been blogging at National Review Online's Bench Memos that Greenhouse has a conflict of interest in covering challenges to the Bush administration's military-justice cases where Greenhouse's husband has participated in amicus briefs. Her husband is Eugene Fidell, a D.C. lawyer whose National Institute of Military Justice has taken public stands against the administration in key court cases, including one that's pending at the Supreme Court. The essentials:

• Whelan calls Fidell's advocacy a direct conflict of interest for Greenhouse. Greenhouse disagrees, saying there's a big difference between covering a spouse as counsel to one of the parties or a spouse as one of many amicus advocates.
• Greenhouse cleared her actions with her bureau chief and upper-level editors. But Hoyt urges disclosure to readers (in, for example, an official bio) when Greenhouse and her husband cross paths to this extent.

My take: Whelan has raised a legitimate issue that deserves the scrutiny it's now getting. But giving him credit requires holding one's nose while wading through his anti-Greenhouse screeds (which he's most recently posted on Dec. 13, Dec. 20, Jan. 14, and Jan. 17, in parts 1 and 2). Hoyt called Whelan's tone "bullying." I'd call it paranoid. But, no matter how overwrought, at its root is a fair question: When does a spouse's public expressions of political and legal positions pose a conflict, real or perceived, for the legal reporter? Is an amicus brief "participation" in a case, or merely expressing a point of view akin to a bumper sticker or signing a petition, or something in between? And how are reporters' conflicts of interest best handled: through recusal or disclosure? Hoyt could have done a better job of explaining the arguments and his responses. I think he arrived at a fair conclusion in this case. The rules of engagement remain murky, however. Perhaps we can count on Whelan and the rest of the Greenhouse-hating gang to bring more test cases.

Full post as published by Lawbeat on January 20, 2008 (boomark / email).