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August 10, 2005
What'd I Say? Don't Ask The New York Times

That Ray Charles song may come to mind for the participants in the meeting yesterday between Senator Ron Wyden and Supreme Court nominee John Roberts. According to Wyden and reported by the New York Times directly from his notes, Roberts responded to a question regarding the Schiavo case by chastising Congress for stipulating rememdies to the federal judiciary through legislation:

Terri Schiavo, the brain-damaged Florida woman whose case provoked Congressional action and a national debate over end-of-life care, became an issue on Tuesday in the Supreme Court confirmation of Judge John G. Roberts Jr. when a Democratic senator pressed him about whether lawmakers should have intervened.

The senator, Ron Wyden of Oregon, said that Judge Roberts, while not addressing the Schiavo case specifically, made clear he was displeased with Congress's effort to force the federal judiciary to overturn a court order withdrawing her feeding tube.

"I asked whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy," Mr. Wyden said in a telephone interview after the hourlong meeting. "His answer was, 'I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds.' "

The answer, which Mr. Wyden said his aides wrote down word-for-word, would seem to put Judge Roberts at odds with leading Republicans in Congress, including the Senate majority leader, Bill Frist, and the House majority leader, Representative Tom DeLay, who both led the charge for Congressional intervention in the Schiavo case this spring. Mr. DeLay said at the time that the federal judiciary had "run amok."

At the time, it certainly played out to the opposite. The federal judge who heard the case gave the opinion that the text of the law did not stipulate to a specific remedy, which is why he declined to give the Schiavos a de novo hearing. One would tend to believe that jurists will sympathize more with the judge on this point, while Congressmen and Senators would oppose that. However, Wyden supports physician-assisted suicide as implemented on a state level in Oregon and doesn't want Congress dictating to the federal bench to overturn it.

Curiously, the Republicans who took part in this conversation remember it differently. Ed Gillespie sent a letter to the Times' DC Bureau asking them to rewrite this article to include a rebuttal from the White House staff assisting Roberts in his pre-confirmation rounds at the Senate. This letter will get posted later today on the web, but a source within the GOP has disseminated it to bloggers:

Dear Mr. Taubman,

In covering a meeting yesterday between Senator Ron Wyden (D-OR) and Supreme Court nominee Judge John Roberts, the New York Times provided the Senators characterization of Judge Roberts views in relation to the Schiavo case, which were based on notes from the meeting taken by the Senators staff. In reporting on the meeting, the New York Times chose not to contact the White House for comment.

Had it done so, the White House would have been happy to have provided the recollections of others present in the meeting. Former Senator Fred Thompson, who is helping Judge Roberts in his meetings with senators, does not believe that Judge Roberts made comments as described in the article. For example, the Times writes that Roberts made clear he was displeased with Congresss effort to force the federal judiciary to overturn a court order withdrawing her feeding tube. He said no such thing, according to others in the meeting.

In fact, notes taken by a White House aide at the meeting reflect that Judge Roberts said he had not studied the Schiavo case and could not comment on either the case itself or Congresss actions related to it.

Judge Roberts courtesy visits with senators are closed to the press and are treated as private by Judge Roberts and the White House, but if a senator chooses to publicly characterize the nature of those conversations, the White House would appreciate the opportunity to provide a fuller accounting of a two-way discussion. The New York Times is welcome to contact our press office for such perspective 24 hours a day, seven days a week.

In the meantime, we would appreciate the Times correcting todays article in writing, noting that notes taken by a White House aide present in the meeting show that when Senator Wyden asked Judge Roberts what he thought about the Schiavo case, Judge Roberts replied, I havent studied the case. I wouldnt want to opine on it. And in addressing the idea generally of specific remedies, Judge Roberts noted that I am aware of Court precedents which say congress can overstep when it prescribes particular outcomes in particular cases.

As the person charged with coordinating the White Houses efforts to confirm Judge Roberts, I would appreciate your consideration of this time-sensitive request.

Sincerely,

Edward W. Gillespie

I see two problems with this article. First, Sheryl Gay Stolberg works for the New York Times, which tends to get noticed when placing calls to press offices. Nowhere in her report does she indicate that she attempted to contact Roberts or the White House staff on this issue, even though she writes about how Roberts' response as given by Wyden will generate controversy among his supporters. Such a controversial response should have prompted her to at least attempt to confirm Roberts' response instead of just accepting what Wyden said over the phone to her.

Second, read the article carefully. Stolberg gets quotes from Wyden, Senator Pat Leahy (D-VT), and reports extensively about the NARAL ad that Factcheck.org now calls false and "especially misleading." She includes no quotes from Republicans, and only notes in a single sentence that the NARAL ad prompted a response advertisement from Progress for America (which she labeled a "conservative advocacy group" despite not giving a partisan characterization to NARAL) without describing their objections to the NARAL ad.

Stolberg either does a poor job presenting a balanced look at the issues or a terrific job of writing a biased hack piece on Roberts, albeit a rather minor one. If I were Ed Gillespie, I'd ask the Gray Lady what happened to its journalistic standards in a more general sense.

UPDATE: Bench Memos at NRO had this earlier, and gives a bit more context to the dispute:

According to a White House source familiar with the meeting, the story is completely off base and represents a "gross lack of journalistic ethics." The reporter, Sheryl Gay Stolberg, "never called the White House and didn't call the judge to check the quotes." She was essentially "anointing a Democratic Senator to be spokesperson" for Judge Roberts.

The substance of Wyden's account is grossly misleading, according to this White House source. "Judge Roberts said more than once in the meeting that he's not going to talk about the Schiavo case." Moreover, there was "nothing said in the meeting to give support to the notion that he was displeased with Congress's action" in the Schiavo case.

As for Roberts's purported statement that "Congress can prescribe standards," but may overstep its bounds when it seeks to prescribe particular remedies, Wyden's characterization of that statement is materially misleading because it was not the full quote. Apparently, Roberts was only characterizing Supreme Court precedent that discussed that line of thought. It would have been more accurate for Wyden to explain that Roberts said something like "I am aware of Supreme Court decisions that say that . . . ." But Roberts did not in any way give his own view of Congress's power, and Wyden's comments are simply not supported by the actual substance of the meeting.

I'd say that the White House is pretty steamed. It sounds like they have a right to be. The lack of context probably amounts to little more than a misunderstanding, but the failure of Stolberg to simply pick up the phone and ask seems very troubling, as does the rest of her reporting in this article.

UPDATE II: NRO has the PDF of Gillespie's letter here.

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Posted by Ed Morrissey at August 10, 2005 12:40 PM

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