Gilbert Cranberg: MINDLESS HIGH COURT SECRECY

Sandra Day O’Connor, the first woman to serve on the Supreme Court, has been making the rounds of television interview shows to promote her recently published book, “Out of Order.” During the interviews she invariably emphasizes that the court gives written explanations for “everything it decides and does.”

Actually, O’Connor hung out with a pretty secretive crowd. Want to know which justices voted to review the high-profile California same-sex marriage case argued March 26? The Supreme Court doesn’t customarily reveal such information although the votes that determine the court’s docket are among the most consequential a justice casts. Ditto when a justice removes himself from a case. Recusals can determine the outcome of a case, but almost never does a justice publicly disclose the reasons he or she declines to participate in a decision.

Several years ago I wrote to members of the court to request an explanation for the secrecy on recusals. A majority of the court responded, perhaps because I had made a pest of myself about an unrelated court matter and they decided to humor me. In any event, the reasons the justices gave for the secrecy surrounding recusals, in their letters to me, ranged from the silly to the superficial. 

It’s possible that the Supreme Court will decide that it made a mistake when it agreed to review the California same-sex marriage dispute. If so, there will be legitimate public interest in knowing how the justices voted on the question of whether to grant review. Disclosure of the vote ought to serve as precedent for routinely revealing how all justices decide the important question of which cases to place on the court’s docket.

Gilbert Cranberg: ON LEVELING WITH READERS

Washington Post columnist David Ignatius did journalism proud when he wrote in the Post March 20, “I was covering the U.S. military as it began its assault on Iraq. As I read back over my clips, I see a few useful warnings about the difficulties ahead. But I owe readers an apology for being wrong on the overriding question of whether the war made sense. Invading Iraq to topple Saddam Hussein a decade ago was one of the biggest strategic errors in modern American history.”

An apology!! Now and then it happens, but it’s not the norm. Customarily, the press simply goes about its business and hopes readers are not paying close attention to how it editorialized earlier.

The people responsible for Post editorial policy should emphasize the admirable Ignatius apology by emulating it. The paper was avidly pro-war. Bill Moyers tallied 27 Post editorials in favor of invading Iraq in the months leading up to the war. Howard Kurtz, a former Post writer, counted approximately 140 front page articles in the Post making the Bush administration’s case for war from August 2002 until the invasion in March 2003. The Post’s editorial on the invasion’s tenth anniversary uttered not a word about the paper’s drum-beating for war. Post readers were owed at least a reminder of how the paper had pressed for war again and again.

Unlike the Post’s tenth anniversary editorial, which expressed no misgivings about the war, the New York Times anniversary piece made no effort to hide the Times' contempt for the Iraq war, calling it  “unnecessary, costly and damaging on every level.”

Thomas L. Friedman, the Times foreign affairs columnist, favored the U.S. invasion of Iraq, but didn’t remind readers of that in his column on the tenth anniversary of the war. Nor did the Times recite for readers where it stood on the war at its outset.

As a service to readers, the press ought to routinely disclose consequential positions taken previously. Readers should not have to plow through archives to learn whether the paper they buy has been altogether candid with them.

Gilbert Cranberg: ROMNEY’S SECRET PLAN

Before the recent presidential campaign recedes into the mists of time, the Truth Blog brings you an exclusive: how the Romney campaign planned an audacious effort to snatch victory from looming defeat by proposing to fly Romney to Israel with his five sons for all of them to be circumcised to demonstrate the “oneness” of the Romney clan with the Jewish people.

Circumcision: ”The act or custom of cutting off the foreskin of human males particularly as a religious rite of Jews, Moslems and others or as a hygienic measure.”

The elder Romney, upon being briefed about the plan, endorsed it instantly. His sons were less certain. They were convinced, finally, to embrace circumcision by polling data showing that the states of Florida and New York, both vote-rich with persons of the Hebrew persuasion, were crucial to Romney’s electoral hopes. The family matriarch, Ann Romney, was noncommittal . She said somewhat enigmatically “It’s their bodies, they should use them for the greater good.”

Arrangements for the event were proceeding until a campaign staffer conceived the idea that it should be televised. The staff as a whole endorsed the plan and set about arranging worldwide coverage. The reception in Israel, however, was a whole different order of magnitude. A special meeting of Sages was convened. It was tumultuous. A Sage who left the meeting visibly agitated was heard to mutter, “Mishegas!” Things went downhill from there and the plan for the mass Romney circumcision petered out and was then abandoned.

When political scientists gather the conversation invariably turns to the aborted Romney circumcision. It would have made electoral history, but would it have mattered? We may never know. All that can be known with certainty is that future presidential candidates are grateful that it did not come to pass.

Gilbert Cranberg: A PROMISE UNREALIZED

The anniversary of a signature event many times is marked by noting significant developments in the interim. Not so with the way the New York Times observed the 50^th anniversary of the U.S. Supreme Court’s decision in Gideon vs. Wainwright, the landmark case that established the right of poor people accused of crimes to be represented by attorneys. The Times used the anniversary not to dwell on the ruling’s achievements, but to remind readers of how far short of the initial promise it has fallen.

The headline on the March 10 editorial-page piece by Lincoln Caplan accurately describes the article: “The Right to Counsel: Badly Battered at 50.” Caplan cited a litany of failures that have made the ideal of equal justice an illusion: overworked defense lawyers and underfunded systems for paying them; appellate courts too willing to tolerate inferior justice for the poor; and numerous examples of abuse, including a death penalty conviction upheld even though the main defense lawyer drank a quart of vodka each night of the trial, another in which a court allowed the death penalty to stand despite evidence that the lead defense lawyer slept during the trial.

These are especially eye-catching cases, but it’s the routine day-to-day ill treatment of the poor that ought to command attention. When I worked at the Des Moines Register, I examined the records of all of the state’s 1,800 prison inmates. I wrote about it in 1958:

“More than 300 of the Iowa prisoners – almost one out of five – were not represented by an attorney. Included are many men charged with serious crimes, including murder. Seven of the prisoners now serving life terms did not have attorneys to act in their behalf at the time of sentencing.

“At least four prisoners sentenced without an attorney were subsequently examined in prison [and] found to be mentally ill.”

How could hundreds of unrepresented people have been imprisoned in Iowa, a reasonably enlightened place, despite the fact that the state had its own guarantee of the right to an attorney for indigent defendants?  My guess is that many, if not most, were told of their right to a lawyer, but then waived the appointment of counsel mistakenly believing that because they were guilty they did not need an attorney, or possibly in a naïve bid to curry favor with prosecutors.

The 50^th anniversary of Gideon ought to be the occasion for Iowa’s two law schools, at the University of Iowa and Drake University, to update the Register’s 1958 study. Are Iowans, among them the mentally ill, still being sent to prison, even for life, without the benefit of legal advice? It would be fascinating to find out.

Gilbert Cranberg: DEMAGOGY IN HIGH PLACES

Advice to the GOP: Quit being gratuitously nasty. As when House Speaker John Boehner recently said the dispute with Democrats amounted to a question of “how much more money do we want steal from the American people to fund more government.”

The equating of taxing with theft didn’t emerge from the far fringes of the Republican Party. It came from the party’s very pinnacle. The House speaker holds a constitutional office so high that he is third in line to be president, immediately after the vice president.

The power to tax likewise is owed to the Constitution, which since 1913 has said, “The Congress shall have power to lay and collect taxes from whatever source derived.”

To suggest, as Boehner does, that the U.S. government is financed illegitimately, borders on the irrational. Talk like that debases political discourse and should make anyone considering an affiliation with the GOP wonder if the party has lost its moorings.

Republicans nowadays are in a period of introspection, trying to figure out where their party goes from here. It ought to be obvious, but apparently is not, that the way out of the political wilderness is not through reckless demagogy.

John Boehner should begin the process of appealing to reason by retracting his senseless and tasteless comments denigrating Democrats for aiding and abetting thievery. Unless, that is, he really believes it. In that case, the party is in far worse shape than I realize.

Gilbert Cranberg: TIME MAGAZINE’S WONDERFUL PUBLIC SERVICE

My advice: take the time to read Steven Brill’s voluminous article in the March 4 Time, “Bitter Pill: How Outrageous Prices and Egregious Profits Are Destroying Our Health Care.” Time bills it as a Special Report, and it is special – Brill spent seven months on the piece, which is brilliantly reported. The article was intended originally for The New Republic, whose editor should kick himself for letting it get away.

Brill spent gobs of time dissecting hospital bills and individual patient experiences. It is treatise-length, and like a good treatise, is packed with useful information. But Brill knows how to report and the piece grabs the reader and doesn’t let go.

Time editors deserve a world of credit for devoting so much space to a well-worn subject and for giving Brill’s incisive journalism the display it warrants. He shines light in unaccustomed places, such as the outsized profits hospitals make from the over-ordering and overpricing of lab tests.

Brill’s piece is rich with nuggets on how to cut health-care costs. He notes that Medicare could save billions “if it required that no supplemental insurance plan for people with certain income or asset levels could result in their paying less than, say, 10 % of a doctor’s bill until they paid $2,000 or $3,000 out of their pockets in a year.” But he points out that AARP might oppose the step because “it gets royalties from UnitedHealth Care for endorsing United’s supplemental insurance products.” Brill might have added that AARP hides even from its own members how much it pockets from UnitedHealth.

Journalism schools ought to use Brill’s report as an example of how to do investigative journalism. Members of Congress should read it for tips on how to cut health care costs. The article is a must-read for anyone making health-care policy. Above all, consumers should not be put off by the piece’s more than 40 pages. Many of us are just one illness or operation away from financial catastrophe. Time has performed a wonderful public service in turning Steve Brill loose, and in opening its pages wide for his work.

Gilbert Cranberg: LAPDOGS AT WORK

On February 18 MSNBC aired ”Hubris: The Selling of the Iraq War.” The hour-long program was a searing look at how Bush administration officials, from the president on down, manipulated intelligence to bamboozle the country into attacking a country that had done us no harm.  A repeat showing is scheduled for March 22 at 9 p.m. Eastern. 

MSNBC covered the events “Hubris” describes, but the program does not engage in introspection. In fact, it devotes just seconds to press coverage of the build-up to war. If you sneezed, you would miss it.

Not so, with journalist Eric Boehlert’s “Lapdogs: How the Press Rolled Over for Bush.” As the sub-title suggests, the book is about the press’s failure to report adequately on the Bush administration’s drive for war. It was a monumental failure, says Boehlert, that led directly to war.  He writes:

”In truth, Bush never could have ordered the invasion of Iraq – never could have sold the idea at home—if it weren’t for the help he received from the mainstream media, and particularly the stamp of approval he received from so-called liberal media institutions such as the Washington Post, which in February of 2003 alone, editorialized in favor of the war nine times.  Between September 2002 and February 2003, the paper editorialized 26 times in favor of the war. The Post had plenty of company from the liberal East Coast media cabal, with high profile columnists and editors…all signing on for a war of preemption…..Being weak and timid and [regurgitating] administration spin amidst a wartime culture is one thing. But to be actively engaged in the spin, to give it a louder and more hysterical voice, is something else altogether. In fact, the compliant press repeated almost every administration claim about the threat posed to America by Saddam. The fact that virtually every one of those claims turned out to be false only added to the media’s malpractice.”

Boehlert spent 333 pages describing the press’s dismal performance that “Hubris” virtually brushes aside. “Lapdogs” reports that MSNBC threw off the air Phil Donahue, a consistent critic of the war, and quotes an internal memo that Donahue presented “a difficult public face for NBC in a time of war.” It relates further that MSNBC’s Chris Mathews hosted a discussion about the war that featured an unbalanced panel of mostly cheerleaders for the war.

So does MSNBC’s “Hubris” steer clear of how the press covered the Iraq war because the network’s own skirts need cleaning? It’s a tempting thought, but attributing motive is risky and unfair. A very good editor once advised against speculating about motive because that’s akin to mindreading. Instead, discuss what is said and done, he advised, because those are verifiable facts

If you did not watch "Hubris" when it aired earlier, you are well advised to see the repeat. It’s just too bad that MSNBC’s account of how we came to fight an unnecessary war has such an unexplained and troubling gap.

Gilbert Cranberg: WILL NEW PRIZE DO MORE HARM THAN GOOD?

The new Breakthrough Prize In Life Sciences carries a rich reward for the winners--$3 million for each of five annual awards “to recognize excellence in research aimed at curing intractable diseases and extending human life.” The foundation administering the prize is dedicated to “advancing breakthrough research, celebrating scientists and generating excitement about the pursuit of science as a career.”

The foundation website is silent about whether any of the prizes will be posthumous. It seems likely, though, that death will be a disqualifier. After all, a purpose of the rewards is to provide “recipients more freedom and opportunity to pursue even greater future accomplishments.” Death has a way of discouraging future accomplishments.

The richer the prize, the more sense it makes to confine it to scientists able to continue to make contributions. But that creates its own set of problems. Among them, the way premature death can deny recognition to deserving scientists.  I am reminded of a gifted relative, the co-discoverer of Carbon 14, who was denied full recognition because of his premature death in a laboratory accident while his co-discoverer enjoyed winning the prestigious Fermi Prize.

The foundation says “There are no age restrictions for nominees.” As laudable as that sentiment is, it would scarcely further the aims of the foundation to honor people on their deathbed or those too old and feeble to do significant creative work.

The Breakthrough Prize’s ground rules state that its prize “can be received more than once.” That makes an award potentially worth tens of millions of dollars. It’s obviously wonderful that so much money is to be invested to extend human life. But with so much prize money at stake, there are bound to be unintended consequences. One could well be an incentive for the precise opposite of what founders of the prize intend: the proliferation of scientific misconduct and its close cousin, junk science.

The Scientist Magazine reported in a recent issue that it found “no shortage of stories to discuss in this year’s roundup of misconduct stories.” There followed a litany of seamy goings-on in the nation’s research laboratories. Much of it was due to an overzealous search for prestige and status. The Breakthrough Prize adds riches to the mix. It may not be possible to quantify how much this super-rich prize contributes to scientific misconduct, but it will be surprising if it doesn’t add to what is now a worrisome ongoing problem. The Breakthrough Prize will need to be on guard to be sure that it does more good than harm.