The Times sent veteran Supreme Court reporter Linda Greenhouse into retirement in grand style on Sunday, turning over to her the front page of the Week in Review for "2,691 Decisions,"a title marking the number of court cases she had covered during her tenure.
Unmentioned were her off-the-clock denunciations of conservatives, as in her infamous speech at Harvard in June 2006 when she tore into the Bush administration. What was included: Her clear belief that the world is a better place with Anthony Kennedy on the Court and Robert Bork not.
First, some of what Greenhouse told Harvard students in 2006:
...our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let's not forget the sustained assault on women's reproductive freedom and the hijacking of public policy by religious fundamentalism."
Seven of the eight Marines charged with crimes related to the so-called massacre at Haditha have had their charges dropped, making Greenhouse's reckless charge officially false. Later in that same speech, Greenhouse hinted at what she might do upon retiring from the Supreme Court beat - parrot liberal talking points on illegal immigration.
I suppose that if I had to boil down my side of the argument with my mother to one thought, it would be that in my lifetime, I have seen the fences around nearly all these definitions lowered, with a corresponding increase in the opportunities to make and maintain connections across barriers that not so long ago were nearly impermeable. As I look toward the next chapter in my life, I feel a growing sense of obligation to reach across the absurd literal fence that some of our policy makers want to build on the Mexican border and to do what I can to help those whose only offense is to want to improve their lives.
In Greenhouse's long valedictory article on Sunday, she spoke of how excited she was to hear of President Reagan's nomination of the first woman to the Supreme Court, Sandra Day O'Connor: "I was thrilled in a way I would never have predicted." So caught up was Greenhouse in the idea of a female Justice, she actually spoke to O'Connor in dreams.
Greenhouse rounded off her reflections with the 1987 harbinger of today's brutal court fights - the left's assault on Reagan's Supreme Court nominee Robert Bork. Of course, Greenhouse doesn't see it that way - her criticism of Ted Kennedy's disgraceful smearing of Borkwas mild and implicit:
But with so many important cases decided by such close margins (the two leading cases of the past term, on the rights of the Guantánamo detainees and the Second Amendment right to own a gun, were decided by votes of 5 to 4), perhaps fragility, rather than stability, best characterizes the court today, and that is a reminder of the stakes involved in any Supreme Court vacancy. The galvanizing battle over the nomination of Robert H. Bork in 1987, a conflagration at the intersection of law and politics that held the country spellbound for three months, was the most riveting public event I ever witnessed at close range. Although Judge Bork was, of course, defeated, in many ways the Bork battle has never really ended, with today's ceaseless judicial confirmation wars being carried on by ideological combatants too young to remember the original.
President Reagan nominated Robert Bork, a well-known conservative, to the "swing" seat on the court being vacated by Justice Lewis F. Powell Jr. I knew Bob Bork. He had been a professor of mine at Yale, an urbane and witty man who bore little resemblance to the instant portrait painted by his opponents. ("In Robert Bork's America," Senator Edward M. Kennedy famously said in response to the nomination, "there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.") The day he was nominated, I left a message on his home answering machine. "Congratulations, and keep your sense of humor," I said. "I think you'll need it."
His sense of humor failed him. As the hearings went on, he became testy and abrupt. When he said that serving on the court would be an "intellectual feast," he was simply being honest. It would have been more politic, but less candid, to claim that he was motivated by a desire to serve the cause of justice. He and his supporters emerged from defeat filled with bitterness, persuaded that he had been dealt an unfair hand.
To the contrary, I thought then and think now that the debate had been both fair and profound. In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution's text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork's constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution's framers had "made a covenant with the future."
Among the"fair and profound"points raised by Democrats were questions about Bork's beard and his "strange lifestyle" (courtesy of Alabama Sen. Howell Heflin).
Greenhouse apparently thinks America was lucky to avoid a nominee like Bork who actually took pains to discern the Founders' intent:
It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists - 5-to-4 decisions that would surely have found Judge Bork on the opposite side - is a measure of the lasting significance of what happened during that long-ago summer and fall.
It is also a reminder of something I learned observing the court and the country, and listening in on the vital dialogue between them. The court is in Americans' collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.
Greenhouse wrote a sidebar, "3 Defining Opinions,"shaded withliberal slant:
Planned Parenthood v. Casey (1992): The Triumph of Precedent? Reaffirmed the constitutional right to abortion by a vote of 5 to 4....
In 1989, Greenhouse marched at an abortion rights rally while Times' reporteron the Supreme Court.
Adecision that pleased conservatives, Bush v. Gore, was not a triumph of "precedent" but of sleazy "politics"
Bush v. Gore (2000): The Triumph of Politics?....A debate continues to this day over whether the five justices in the majority were motivated by politics or by the neutral principles they invoked.