Times Watch for
Deborah Sontag Slimes the Fourth Circuit Court Deborah Sontag, staff writer for the Times magazine, is perhaps best known among conservatives for her 6,000-word revisionist history on the Middle East peace talks in July 2001. Reporting from Jerusalem, she lamented that "a potent, simplistic narrative has taken hold in Israel and to some extent in the United States" about why peace talks failed. Her theme? It wasn't Arafat's fault. As Robert Satloff noted in The New Republic, her long article mentioned the word "intifada" just once. Last Sunday, Sontag delivered another whopper of a piece, in both length (8,000-plus words) and bias, for the New York Times Magazine, a cover story profile of the US Court of Appeals for the Fourth Circuit. The court is based in Virginia, a conservative Southern state, in case anyone missed the point: "As recently as 1999, Chief Justice William H. Rehnquist led the Fourth Circuit's annual judicial conference in a traditional rousing sing-along that included 'Dixie.' This always offended civil rights lawyers and the few African-American lawyers in attendance. But it never surprised them." What this has to do with anything Sontag left unstated. "To critics," she wrote, "the Fourth Circuit lacks compassion for the individual. To admirers, the Fourth Circuit is a welcome corrective after years of soft, liberally activist benches, a brilliant court with a healthy respect for the concerns of prosecutors, of business owners, of state officials - and of the Bush administration." To Sontag, the fight for the soul of the Fourth Circuit pits compassionate upholders of individual rights versus business and Bush. Of Judge Harvie Wilkinson: "Yet with conservatives now controlling most of the nation's federal appeals courts, Wilkinson is one among many who have come to a new appreciation of judicial activism. Like the "new federalists" whose conservative thinking increasingly influences the legal mainstream, Wilkinson said he believes that the Constitution is more than just the Bill of Rights." One would hope all judges believe the Constitution is more than just the Bill of Rights. But what's truly sneaky about the above paragraph is Sontag's endorsement of the liberal game where conservative courts that reverse liberal activist rulings are then accused of being activist themselves. The excerpts from Sontag's piece don't even capture its full flavor, salted with such terms as "judicially active conservative court," "conservative heavyweights," and "staunch conservative." Sontag covered the debate over the case of Lisa Ocheltree, an apparent sexual harassment victim "who filed suit under Title VII, a civil rights law that sees sex harassment as a violation of the prohibition against workplace discrimination because of sex." Sontag liked one judge who sided with Ocheltree during oral arguments: "[Roger] Gregory, the African-American judge who joined the court in 2001, didn't grandstand. When he speaks, though, he doesn't mince words, slices to the core and if the subject is discrimination, he gets it. Title VII is not about sex or race, he said; it's about power." Sontag is working with a double standard here. Some 4,000 words back, she wrote of Michael Luttig, one of the court's conservative judges: "Attorney who go before Luttig know about one central event in his life: that his father was brutally murdered nine years ago, that he moved his chambers to Texas during his father's killer's trial and that the killer became a cause clbre for death-penalty opponents before he was executed. Some wonder if it makes him less objective; Luttig has never granted a new hearing to a death-row defendant. He brushes their concerns aside; the experience affected him - how could it not have? - but it didn't warp him." But though Luttig's life experience would seem to invest him with sympathy for crime victims, Sontag most assuredly didn't write of Luttig: "When it comes to crime victims, he gets it." In fact, she found his experience worrisome, perhaps "warping." Yet she invests Judge Gregory's opinion with credibility based on Gregory being black and by definition an expert on discrimination. Sontag concluded: "It would certainly help many Americans sustain their faith in the system if the courts could find their equilibrium, if they could become less ideological, less predictable and less political. That doesn't appear to be on the horizon, though, not in the foreseeable future. In the historic site in Richmond where the Confederacy once thrived, the United States Court of Appeals for the Fourth Circuit is ushering in the 21st century." (Note Sontag's so-subtle linkage of the Court of Appeals with the taint of the Confederacy.) Besides, one would imagine most people would be heartened if courts became more predictable in their rulings, not less. Such a move would bolster the reputation of courts as objective respecters of the law, as opposed to activists who read into the law what they wish to see. Activists like Deborah Sontag.