Patterico's Pontifications

12/4/2007

Editors of the New York Times: Lazy? Stupid? Or Willfully Dishonest? You Be the Judge!

Filed under: Court Decisions,General,Judiciary,Media Bias — Patterico @ 8:22 pm

“The Board,” the new blog by the members of the New York Times editorial board, is filled with the kind of kneejerk leftist nonsense you’ve learned to expect from this gang.

The editors are never so off-target as when they write about the Supreme Court, and today is no exception. Today’s entry, titled Our Logic-Challenged Supreme Court Takes on Age Discrimination, begins with a swipe at the Roberts Court:

The Roberts Court seems to be driven these days by ideology — even, increasingly, to the exclusion of common sense.

Take the case about age discrimination, on which the court heard oral arguments yesterday.

Ellen Mendelsohn, who alleges that she was fired by Sprint/United Management Company because of her age, wanted to introduce “me too” evidence — other workers who say they were also discriminated against on the basis of age.

Of course “me too” evidence should be admissible. We know in our own lives just how important it is in resolving disputes. If you were investigating whether a kid in a classroom punched his classmate, wouldn’t you be interested in knowing that five other kids say he punched them, too?

Sure I would. Except, that’s not what’s going on here. Nobody disputes that the plaintiff can introduce evidence of discrimination by her own supervisor against other employees. The “me too” evidence at issue is evidence of discrimination by other supervisors against other employees. In an article that appeared today in the editors’ own paper, Linda Greenhouse explained:

The case concerned whether an employee can seek to prove discrimination by offering what is sometimes known as “me too” or “other supervisor” evidence, testimony from other employees who also claim to have suffered discrimination under similar circumstances, but at the direction of different supervisors.

This description is not hard to find. It’s the second paragraph of Greenhouse’s article — an article which the editors themselves link, by the way. Greenhouse’s explanation utterly demolishes the editors’ silly analogy to bullying schoolchildren. Commenter aks at the editors’ blog makes the point that the logic-challenged editors don’t quite seem to get:

[I]f the kid hit five other classmates, [evidence of that] would come in. What wouldn’t come in is evidence that some other bully in the same school hit some kid in a different class–the distinction is an important one.

Not only is the distinction important, it’s also easy to understand. But the editors instead completely mischaracterize the evidence at issue, implying that the argument was over the admissibility of evidence of other discrimination by the plaintiff’s own supervisor.

How did the editors get this so badly wrong? As I see it, there are three possibilities:

  • 1. The editors didn’t read Greenhouse’s article, at least as far as the second paragraph.
  • 2. The editors read that paragraph, but didn’t understand it.
  • 3. The editors are being willfully dishonest.

Which is it? I would support waterboarding the editors responsible for this blog entry, if doing so would force them to reveal which possibility is correct.

I suspect it’s Possibility #3: the editors are being willfully dishonest. My conclusion is supported by another part of the editors’ blog entry:

But as Linda Greenhouse reported in the Times today, several of the Justices, perhaps a majority, seemed inclined not to allow such evidence, or to admit it only under limited circumstances. They appeared to be worried that each of the other employees’ claims would require a “mini-trial” to determine what went on in their own terminations.

One Justice complained that it might produce “trials that last a thousand years.” Unlikely, really.

Keep in mind that the blog entry begins with a complaint about the lack of common sense displayed by “[t]he Roberts Court,” and ends with a complaint about “[t]he Robert Court.” (Hey, they’re editorial board editors, not copy editors!) So who is this unnamed Justice representing the Roberts Court — the one who complained about thousand-year trials? The evil Antonin Scalia? The malevolent Clarence Thomas? For the answer, let’s turn to Greenhouse’s article again:

Even some of the more liberal justices appeared dismayed by the prospect of conducting trials within trials to untangle conflicting evidence about how other supervisors might have treated other employees.

Justice David H. Souter said such evidence could be “substantially misleading or prejudicial.” Justice Stephen G. Breyer said, “We might do quite a lot of harm by trying to let the Court of Appeals second guess trial courts on this kind of thing.”

He added: “We’ll have trials that last a thousand years.”

Justice Stephen Breyer — the very face of the “Robert Court”!!

I guess actually naming him in the blog entry would have taken some of the oomph out of the editors’ diatribe against the Robert(s) Court. So, they simply leave him unnamed, leaving readers to conclude that the Justice in question is one of those evil conservatives.

As I said: Possibility #3: willful dishonesty.

26 Responses to “Editors of the New York Times: Lazy? Stupid? Or Willfully Dishonest? You Be the Judge!”

  1. Patterico – After just reading the headline, I would answer (D) All of the above.

    JD (2c9284)

  2. Does all of the above include waterboarding?

    SteveG (4e16fc)

  3. Yes, and if it was a pay-per-view to see Krugman, Dowd, and Herbert waterboarded for their knavish behavior, there is likely a market. Not that I would want to see that, but I could understand why some would.

    JD (2c9284)

  4. In the ideal world an editorial board would work in a similar fashion to the Supreme Court. They would hear arguments from both sides, perhaps they would do some personal research on the issue, they would discuss it among themselves, and they would finally write the editorial which theoretically speaks for the newspaper.

    In actuality, of course, they hear only the side to which they are ideologically predisposed (even, as Patterico points out, to the exclusion of reading contrary accounts from their own reporters), then craft their opinion to touch all the hot button talking points that are in vogue among the Uptown Drawing Room Crowd. I had an epiphany when I was about 20 years old and first realized that newspaper editorial boards are famously ignorant on most issues on which they opine.

    JVW (04a4a3)

  5. This is a very disappointing editorial, and it disappoints me even more that I bother to feel that way.

    DRJ (a6fcd2)

  6. JD, if you waterboarded the three you mention above, Krugman would complain that the Bush Administration isn’t doing it right. Then when it was pointed out to him how effective his waterboarding had been, he would say that even though he had quickly given up all the information they asked of him it didn’t count because they didn’t ask the right questions. Dowd would write a snarky column about how hard it had been to find the perfect wrap-around to match her waterboarding suit, and how that dilemma, so common to women today, parallels the problems we are having finding lasting solutions for Iraq. There would be two gratuitous references to Cheney, and one to Rumsfeld, with a Hillary Clinton zinger thrown in just for fun. Herbert would ruminate on how the two white columnists were waterboarded first, and what that says about how hard African-Americans struggle for equality in the workplace forty-two years after The Civil Rights Act of 1965.

    JVW (04a4a3)

  7. JVW…
    That’s really funny, and so, so sad.

    Another Drew (8018ee)

  8. JVW – I freaking hate it when columnists and Dem politicians tell someone “But that isn’t the question” to avoid answering the actual question asked. I could see Krugman doing that. Dowd, you nailed, and Herbert, you nailed. Why do they get paid the big bucks when their columns are as formulaic and predictable as the sun rising in the east?

    DRJ – Do they really disappoint you? Every time I find myself starting to become surprised or disappointed, I always think about the story of the turtle and the scorpion.

    JD (2c9284)

  9. If you waterboarded Krugman, you’d just find that his most recent column claimed something in direct contradiction to Krugman’s own past scholarly work.

    SPQR (26be8b)

  10. willfully dishonest…..GUILTY!

    james conrad (7cd809)

  11. I have a question: If someone were not just claiming that they were bullied but rather, that the school had a policy of allowing bullying, and thus wanted to introduce evidence that another bully in another classroom, supervised by another teacher was also getting away with it, would that not be relevant?

    In other words, if she is saying that the company discriminates, rather than an individual supervisor, would it not be fair to ask whether other supervisors are doing the same thing with the (tacit or explicit) approval or direction of the company (like the principal)?

    I have no problem believing that the NYT are ignorant, willfully so or not. Nor do I know much about the case in question. This was just the question that popped into my head.

    Not My Problem (85ef67)

  12. Not My Problem – I am no lawyer, but in the individual capacity, her claim is generally that she was discriminated against. The scenario you describe seems to be that a class of people were discriminated against, which is a different type of action.

    JD (2c9284)

  13. But if she can prove that a class of people was discriminated against and that she belongs to that class of people, while not conclusive, would that not, at least, be evidence that should be heard? (Btw I am not a lawyer either)

    Not My Problem (85ef67)

  14. Not in that forum. She does not get to present the class’ claim on her behalf. Were she to have a class action suit, and she was representative of the class, yes.

    As is, her claim is in regards to her experience, with her supervisor.

    JD (2c9284)

  15. NMP – I await the actual lawyers to drop in and correct all of the legal niceities of what I have said, and to point out how horribly wrong I am.

    JD (2c9284)

  16. Enough of this on-topic legalese… let’s get back to exploring this idea of pay-per-view waterboarding of NYT columnists and editors! I detect an under-served market here.

    sherlock (b4bbcc)

  17. How can you say you want them to be waterboarded?! Don’t you know waterboarding is in direct opposition to all internationally recognized water-saving techniques!

    Polybius (14e4f1)

  18. I thought the ideology of The Grey “lady” and her minions had already been clearly established: tinfoil hatted leftist loons, everyone. Why does what they print surprise anyone? There is no logic in the religion of the uber-left.

    Sue (2cde15)

  19. Mendelsohn did not allege what is commonly known in this field of law as a “pattern or practice” claim or, as another commenter noted, a class claim. As a result, there was no policy at issue. She argued simply that her manager had selected her for inclusion in the RIF because of her age. She then sought to introduce testimony from five other employees – who did not report to her manager and, apparently, whom that manager did not have any input into the decisions to include them in the RIF – that they believed that they too had been selected because of their age. By all accounts, it does not appear that any of these other employees had any information regarding the reasons why Mendelsohn was selected for the RIF by her own manager. Instead, Mendelsohn wanted to introduce the testimony of these five other employees as evidence of a “culture of discrimination,” presumably associated with the RIF.

    This is where the Times blog entirely missed the mark. I doubt that they would feel that evidence that a young man had several friends who had been involved in criminal activity was admissible for purposes of showing that that young man likely committed a crime of which he is accused.

    Will (7ad9bd)

  20. OK, we’ll go back to the bucket technique, instead. It’s what you see in the movies, anyway.

    LarryD (feb78b)

  21. I’m a lawyer, although I can’t say I’m an expert in discrimination law. I do know that a prima facie case normally requires that the complainant (plaintiff) show that she was similarly situated to other comparable employees, but was treated worse. According to the EEOC, “To be similarly situated, comparative employees must have reported to the same supervisor, been subjected to the same standards governing discipline, and engaged in conduct similar to complainant’s without differentiating or mitigating circumstances.” Harris v. Henderson, EEOC No. 01982575 (Aug. 29, 2000).

    Tim K (7e41e8)

  22. Enough of this on-topic legalese… let’s get back to exploring this idea of pay-per-view waterboarding of NYT columnists and editors! I detect an under-served market here.

    sherlock – Maybe we ought to have Dana White from the UFC take a look at this idea.

    JD (2c9284)

  23. It’d be a big help if you all could arrange it so that those of us who see things like this and want to send them via e-mail to a friend could do so. I’ve seen “e-mail to a friend” options in other situations, but not here. Thanks for your assistance in making this possible if you can do so.

    Bill Millard (8320e6)

  24. Thanks to those who replied to my questions, lawyers and non alike! One more question: It sounds as though she could bring in evidence that other people have been discriminated against by the same supervisor to help prove that she was discriminated against. Do I understand this correctly? If so how come this is not the case in say rape trials? In other words if there are five other women claiming that the same man also raped them, can this evidence be brought in to the trial of a sixth where the man is only being tried for the sixth alleged rape? If he had been convicted of any of these other rapes could that information be brought into the trial?

    Since most of my knowledge of law comes from watching too many procedurals on tv, I could easily be mistaken in my thinking that this evidence is not allowed. If it is allowed in one case but not another, why? Is it a difference between civil and criminal law?

    These questions may be off topic. If so, sorry!

    Not My Problem (85ef67)

  25. Not My Problem – I have no idea about the rape scenario you laid out, but I would suspect that there would be boatloads of arguement over admission of prior bad acts, whether or not the defendant had been charged or tried for same which I suspect would have a substantial bearning on the admissibility. Also, I suspect that were they to be allowed into evidence, it would be to show an ongoing pattern of criminal behavior. Again, not a lawyer, so take my educated guesses as just that.

    As far as this case goes, similarly situated people under the same supervisor/manager would be pertinent as to a pattern of behavior, with the key being similarly situated people.

    JD (2c9284)

  26. I don’t practice criminal law, but there’s several federal rules of evidence related specifically to the issue of admissibility in sex offense cases.

    In the criminal context, I believe that prior convictions are sometime let in for purposes of showing an M.O. or some reason other than showing that the defendant is bad.

    Even in discrimination cases, some courts will strike prior claims of discrimination as inadmissible prior bad acts, but most appear to let that kind of evidence in.

    Will (7ad9bd)


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