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Ginsburg coverage insensitive? Phooey!

By Mark Obbie

I didn't write until now about this week's news coverage of Justice Ruth Ginsburg's cancer surgery because I didn't see anything remarkable among reports by SCOTUS beat reporters or other major news organizations. But Tony Mauro's story in the upcoming issue of Legal Times suggests -- and not for the first time -- that what journalists consider routine scrutiny of the justices' lives, the Court may see as intrusive and gauche. Mauro notes the Court's "unusual transparency" in announcing Ginsburg's surgery and revealing a few telling but cryptic details about her condition. He goes on to quote two experts on Ginsburg's probable reaction to speculation about her retirement (or death, though we dare not speak the word) and about a possibly analogous situation when Lewis Powell's illness in the 1980s had strategic effects on the Court's rulings. Here's what one said to Mauro:Yes, and that spotlight was none too harsh, considering that Rehnquist and the Court were hardly models of transparency concerning the chief justice's grim prognosis, as we learned only later. And there's my point: If Garrow's take on this is correct -- and it's both authoritative and plausible -- then what a commentary on the Court's distorted view of its place in public life. Mauro and his competitors have been models of discretion and humanity. Stories brimmed with sympathetic, get-well wishes and cautionary quotes and reminders that Ginsburg's imminent departure is anything but a sure thing. But how could journalists not ask hard questions about how likely Ginsburg is to remain on the Court for many more years? How could they not explore the scenarios that would unfold if she were to leave soon? Why, one might ask, aren't there even more stories about enfeebled, ill justices whose decrepitude only became known long after they were gone? If the Court truly is shocked by this attention -- and I concede that I'm shadow-boxing, since the justices would not deign to weigh in publicly -- then it is a clear reminder that the Court wants total control of its information, and seeks PR rather than transparency. And if I come off as cold and uncaring about Ruth Ginsburg the person, I do apologize. But journalists' human reaction to such stories -- to demur, to commiserate, to hope for the best -- should bow to political and legal realism when discussing what might come next at this critically important post in government. Mauro's story balances the two effectively. We need more like it.

Full post as published by Lawbeat on February 07, 2009 (boomark / email).