Sometime after 6:00 a.m. on Thursday, March 9, I was jolted awake by an electrifying item on NPR's Morning Edition:
"...I, said O'Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O'Connor said we must be ever-vigilant against those who would strong-arm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.—Nina Totenberg, NPR News, Washington."
Sandra Day O'Connor, a Republican herself and a Reagan appointee, just five weeks into her retirement from the U.S. Supreme Court, is warning America that attacks on the judiciary by Republican politicians are the first symptoms of a slide into dictatorship? Hold the front page! This is going to set the world alight: It's as good as Bush announcing one fine morning that the Iraq invasion was a terrible mistake.
Or so I thought, quite wrongly as it turns out. The story of O'Connor's speech—which went largely unreported in the American press for more than a week after it was delivered—gets curiouser and curiouser as the days pass.
By the time I'd made coffee and gone down to my computer, the bloggers were already at work on Totenberg's report, and RawStory.com soon had a transcript of the three-and-a-half-minute broadcast. But no other journalist appeared to have covered the event at Georgetown University, where O'Connor had been talking to a convention of corporate lawyers, so Totenberg was the lone press witness to this startling speech, and the newspapers weren't touching it. With no recording and no published text, the speech existed only in Totenberg's short description of it.
That evening, Keith Olbermann of MSNBC's Countdown invited Mike Allen from Time magazine to discuss O'Connor's reported remarks. "Now you've called attention to it," Allen said, buttering up his host, "it's going to launch a thousand op-eds, because there's been very little coverage of this today." But on Saturday morning, when one or two of those op-eds might have been expected to surface, Olbermann's show, which is probably watched by fewer people than read The Stranger, was still the nearest to "mainstream" media exposure that the Totenberg report had come.
At this point, I decided to conduct a personal experiment in news manipulation. I e-mailed Alan Rusbridger, editor of the Guardian in London, attaching a link to the RawStory.com transcript, and suggested that he might like to put his highly experienced Washington correspondent, Julian Borger, on the trail of the fast-disappearing story. Then I sat down to write an op-ed of my own and sent it to the Guardian before I went out for dinner. On Sunday morning, there was a flurry of e-mails from the Guardian in my inbox: Rusbridger found the whole business "fascinating," and was going to run a front-page report by Borger in Monday's paper, along with my piece on the inside Comment pages.
The Comment editor wanted cuts, of course, as Comment editors always do: Death-of-Milosevic stuff was filling the paper to bursting point, and it would be a tight squeeze to fit O'Connor in.
Borger's piece, headed "Former Top Judge Says U.S. Risks Edging Near to Dictatorship" (www.guardian.co.uk/frontpage/story/0,,1729656,00.html), hewed close to the line of Totenberg's original, but added that O'Connor's speech had also been reported by the Chicago Daily Law Bulletin—not a paper, I fancy, that lands on too many people's breakfast trays. My op-ed, along with a link to the transcript of Totenberg's report, is at www.guardian.co.uk/comment/story/0,,1729345,00.html.
This double-barreled treatment would surely help, I thought, to propel the story into more general circulation than it had had so far.
During the course of Monday, news of O'Connor's warning did begin to spread; websites and newspapers in Turkey, South Africa, India, and Switzerland picked up the story, though now it was being attributed to the Guardian rather than NPR, perhaps because dead-tree media are conditioned to regard airborne media as less authoritative sources than their own kind. Yet still almost nobody except the bloggers was biting in the United States. Where were the Washington Post and New York Times when we needed them? Out to lunch, apparently.
In my new role as news manipulator, I wrote to Jack Shafer, who writes the Press Box column at Slate, saying I was baffled by how such apparently incendiary remarks by a former Supreme Court justice could be so casually ignored by the American press. Shafer replied that I wasn't the first person to contact him on the subject and that he'd get on the case. His column, "O'Connor Forecasts Dictatorship: Why Didn't the American Press Chase the Story?" (www.slate.com/id/2137961/?nav=navoa), appeared on Monday afternoon, and Shafer's prime answer to his subtitled question was Friday laziness. Rather a poor explanation I thought, since O'Connor had spoken at 10:30 a.m. on a Thursday, but Slate reaches a big national audience, and my hope was that Shafer's piece would give the story a fresh set of legs.
Meanwhile, the Guardian wasn't letting go of what had become in effect its own mini-scoop: Tuesday's paper carried an unsigned editorial headed "In Praise of... Sandra Day O'Connor" which ended, "It only remains for her to re-state her views in a more public forum to earn a full measure of gratitude from opponents of overweening government in democratic countries everywhere." Back on this side of the Atlantic, the American Spectator attacked O'Connor's "disappointing" speech, comparing her with that notorious liberal Justice William Brennan, and—as several bloggers on the right had done—questioning the journalistic honesty of "lefty NPR reporter, Nina Totenberg."
The next morning, the San Francisco Chronicle posted an editorial, "O'Connor's Warning," saying that her "remarks on the dangers of dictatorship in this country got little attention last week... But O'Connor's thoughts on the high court deserve prime time." It seemed that at last the story was beginning to gain traction.
Wrong again. Later on Wednesday, six days after the Georgetown speech, another story broke that at once eclipsed and swallowed what buzz there still remained about O'Connor's talk of the path to dictatorship. The new story arose from a speech made by U.S. Supreme Court Justice Ruth Bader Ginsburg in South Africa on February 7, and which had been sitting unreported on the Supreme Court website since March 2, with the unpromising title of "A Decent Respect to the Opinions of [Human]kind: The Value of a Comparative Perspective on Constitutional Adjudication." Almost hidden in the middle of a long, cautious, and subtle argument in favor of looking to the laws of other democracies to illuminate legal questions in the U.S. was an example of the threat faced by American judges when they made unpopular rulings. Ginsburg quoted a message from a chatroom at an unnamed website, aimed squarely at herself and O'Connor:
"Okay commandoes, here is your first patriotic assignment... an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use (foreign) laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom... If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."
This portion of the Ginsburg speech instantly made its way from the Legal Times online to newspapers across the country, from the Boston Globe to the Los Angeles Times and onto the network TV news. Judges, in fear for their lives, couldn't walk the dog without armed protection from the Secret Service, etc. You probably saw it on a screen near you.
There was an eerie similarity between the two speeches. Both dealt with threats to the judiciary, both suggested that rabble-rousing lawmakers were lending their tacit or not so tacit endorsement to loony "commandoes" eager to off a judge as proof of their patriotism. Ginsburg handled the issue with Supreme Courtly judiciousness and tact. O'Connor pointed her finger at Republicans, especially Representative Tom DeLay and Senator John Cornyn of Texas, and said plainly that such attacks, coming from the House and Senate, threatened the basic fabric of American democracy. One speech made the news big-time, the other was mostly treated as if O'Connor had, as I wrote in my Guardian piece, laid an unsavory egg.
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The wartime Royal Air Force had a nice term for a low-flying raid over enemy territory—"doing a cabbage patch." Whether by accident or design, Sandra Day O'Connor has done a cabbage patch, flying at such low altitude that her remarks have barely registered on the national radar.
O'Connor—a former Arizona state senator—is a canny politician, and my guess is that she knew exactly what she was doing. She chose a relatively low-key event at which to drop her bombshell. Unlike Ginsburg, she issued no text of her remarks. All we have to go on is a 400-word précis written by a reporter from an organization regarded by many on the right as a nest of pinko radicals. Totenberg's words, not O'Connor's, are at stake here, and whether they convey the full drift and tenor of the speech is open to doubt and possible deniability.
Why wasn't the room crowded with reporters from the Washington Post, New York Times, or Los Angeles Times? Maybe—as Jack Shafer suggested in a late addition to his Slate column—because they thought they'd heard this speech before. Threats to the judiciary are an O'Connor hobbyhorse; she spoke on the subject in Spokane last July at the annual 9th Circuit Judicial Conference, and in D.C. last November at the American Academy of Appellate Lawyers, where, according to the Legal Times, she made "a rip-snorting defense of judicial independence." Several phrases of the speech reported by Totenberg have the timeworn sheen of standard O'Connor currency. So journalists contemplating the hike to Georgetown law school that Thursday morning may well have thought they'd have to sit through more of the same-old, same-old. What they could not have predicted is that O'Connor would speak of the Republican leadership and dictatorship in the same breath.
In the old Soviet Union, dissident tracts used to pass from hand to hand in grubby Xerox copies—samizdat. They existed as much in rumor as in fact, more spoken of than seen. At present, O'Connor's warning is in a similar limbo. By failing to publish the text of her speech, she is inadvertently adopting the style and manners of the kind of totalitarian regime that she is said to have said that the United States is likely to become if lawmakers like DeLay and Cornyn continue to have their merry way. The tortuous grammar of that last sentence is a measure of the oddity of this whole affair: "Said to have said" is not a construction that's compatible with an open democracy, and until O'Connor releases the full text of her remarks, she'll remain a part of the problem that she is said to have addressed in Georgetown on March 9.
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Postscript. On March 17, the Houston Chronicle and the Salt Lake Tribune both carried editorials based on the Totenberg report. This past Sunday, the New York Times covered O'Connor's and Ginsburg's speeches in a story headlined "Public Comments by Justices Veer Toward the Political," and on Monday quoted O'Connor's "dictatorship" line in its lead editorial, so it looks as if the Georgetown speech will be remembered, after all. But please, pretty please, Justice O'Connor, may we now see that damned elusive text?