Gray Lady Down (13 page)

Like race in politics, another subject whose coverage is laced with double standards is affirmative action and “diversity” as it pertains to the civil services and government contracting, and especially higher education. As John Leo has written, diversity has become a kind of “civic religion” at the
Times,
and it isn’t surprising. “Having
made diversity such an obsession in its own newsroom, it is hard for reporters and editors to maintain professional detachment about racial preferences elsewhere in society.”

The
Times
has shown predictable bias in its coverage of pivotal Supreme Court rulings involving diversity, especially the ambiguous justification the idea received in the 2003
Gratz v. Bollinger
decision regarding university admissions. But its bias may be even sharper toward diversity in the composition of the Court itself. This was especially so during the confirmation hearings for Sonia Sotomayor, who was nominated from her seat on the U.S. Court of Appeals for the Second Circuit in the spring of 2009.

As a lower court judge, Sotomayor, a Puerto Rican New Yorker, had pushed for quotas for Latino and black policemen. In
Ricci v. DeStephano,
she wrote a key decision as part of the appellate court that ruled against white firefighters in Connecticut who claimed they had been discriminated against when the City of New Haven threw out a promotion exam because blacks scored disproportionately low. She also had a long string of remarks in her record reflecting a commitment to identity politics that bordered on racial and ethnic chauvinism. In one 2001 speech she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” She referenced her “Latina soul” and argued that diversity on the bench was necessary because “inherent physiological or cultural differences make a difference in our judging.”

These were signs of a judicial philosophy that put race and ethnicity ahead of legal reasoning, and conservatives rightly went after her. But the
Times
stood as one of her staunchest defenders. When the White House announced her nomination, the headline of a report by Sheryl Gay Stolberg referred to Sotomayor as “A Trailblazer and a Dreamer.” As Sotomayor moved through the Senate confirmation process, Manny Fernandez produced a string of valentines to the judge as “a daughter of the Bronx.” His story about the reaction of students in Sotomayor’s old parochial school at least had a solid peg, but two others following it were built on
air. One focused on a lawyer in private practice who served mostly lower-income clients and felt pride in Sotomayor’s life story. The other was a slice of life at the Bronx courthouse, where Sotomayor had never served.

A glowing biographical take-out of more than 2,000 words, written by three reporters, was headlined “To Get to Sotomayor’s Core, Start in New York—Milestones in Work and Life, Set to a City’s Rhythms.” The piece described the judge’s common touch: the Christmas parties “where judges and janitors spill into the hallway”; her status as “godmother to the children of lawyers and secretaries alike.” The media critic Mary Katherine Ham noted that all this might indicate character, “Unless, of course, Sotomayor approaches her relationships in the same way the
New York Times
writes about them—collecting blue collar chits and counting friends of color as karmic cool points.”

In response to complaints about Sotomayor’s racialism, the
Times
editorial page charged that such grumbling was racism in disguise. Conservative groups and Republican elected officials saw the nomination “as a way to score points off wedge issues that excite their base,” read one editorial. “It diminishes everyone when a nomination process deteriorates into character assassination and ethnic intolerance.” In his column, Bob Herbert wrote, “One can only hope that the hysterical howling of right-wingers against the nomination of Sonia Sotomayor to the Supreme Court is something approaching a death rattle for this profoundly destructive force in American life.” Maureen Dowd followed up with a column headlined “White Man’s Last Stand.” Sotomayor would “bring a fresh perspective to the court,” Dowd wrote. “It was a disgrace that W. [George Bush Jr.] appointed two white men to a court stocked with white men.”

Sotomayor ultimately passed muster. But the case involving the New Haven firefighters, or at least the side on which she had ruled, did not. In the middle of her confirmation battle, the Supreme Court ruled 5-4 that New Haven had acted illegally when it threw out the promotional exam on which minority firefighters had done poorly. In response, the
Times
editorial page warned
darkly that the decision “dealt a blow to diversity in the American workplace.”

Given its commitment to the notion that America’s racial past still weighs on the present, it is no surprise that the
Times’
reporting on big national stories is heavy on white oppression and black victimization. During the Hurricane Katrina catastrophe, the
Times
performed some great reporting in a chaotic and hysterical environment that had qualities of a Mad Max movie. But it also exaggerated the chaos and violence, used the event as an opportunity to bash President Bush, often gratuitously, and legitimized rumor-based accusations of “institutional” racism. In the process, the
Times
spared local officials from responsibility, provided a ready platform for racial demagogues, and allowed itself to be duped by a reflexive commitment to black victimology. Paul Krugman maintained that in a larger sense, the president’s “lethally inept” response to Katrina had a lot to do with race, which he called “the biggest reason the U.S., uniquely among advanced countries, is ruled by a political movement that is hostile to the idea of helping cities in need.”

A March 2006 profile detailing the fate of an alleged victim of Hurricane Katrina said to be languishing in a New York City welfare hotel, in a purgatory induced by bureaucratic unresponsiveness, underscored the paper’s eagerness to embrace a script based on racial victimization. According to the reporter Nicholas Confessore, the victim, a 37-year-old African American mother of five named Donna Fenton, had been a restaurant manager in Biloxi, Mississippi, a city hit hard by Katrina. Fleeing Biloxi, she and her family, including her oldest son’s fiancée, ended up in New York City “with a change of clothes and a tapped out bank account.” The Red Cross placed Fenton with her husband and four of her children in a Queens hotel and gave them a $1,500 debit card. Fenton also got several thousand dollars from the Federal
Emergency Management Agency (FEMA), but that was soon used up on clothes, food and transportation as the family sought to put down roots in a new place.

The focus of the piece was on Fenton’s efforts to secure more aid, including a new place to live. According to Confessore, she had memorized the phone numbers for the Red Cross and FEMA, as well as the city welfare offices: “I call them every day. That’s my job.” Because of bureaucratic ineptitude, filing paperwork was a constant headache; faxes to and from agencies seemed to disappear regularly. “Everything they asked for, I sent in,” Fenton said. “I sent it in the second time, and then I sent it in a third time.” Confessore wrote, “With all the time she spends on the phone, she said, she cannot start the job waiting for her at a Brooklyn check-cashing business.” Twice, Fenton had found apartments “but was afraid to sign leases because she was not sure FEMA’s promised rental assistance would arrive.”

Donna Fenton’s woes went far beyond bureaucratic frustration, Confessore reported. She had lupus, and had collapsed at a Manhattan welcome center after filling out paperwork from half a dozen agencies and charities. The stress on fleeing Katrina had “worsened her condition, producing an enlarged heart and an irregular heartbeat,” and resulting in “four days in the hospital.” Later, a hotel maid found her unconscious, Confessore said. “More hospital stays followed, six in all, as she battled to control her lupus. Then, in February, her appendix burst, resulting in a two-week hospital stay.”

Fenton may have been “polite, organized and determined,” as Confessore depicted her, but she was also a veteran con artist. Even as Confessore was filing his heart-tugging reports, the Brooklyn district attorney’s office had had Fenton under investigation for a month, tipped off by welfare caseworkers who had become suspicious months earlier. In fact, Fenton was not a Katrina victim from Biloxi, had never lived in Biloxi, had a long record of fraud and other criminal activity, and was on five years’ probation for a recent check-forging charge. Much to the paper’s embarrassment,
very little of what Confessore had reported was true, making this article one of the most egregious instances of journalistic gullibility to afflict the
Times
since the Jayson Blair scandal.

The result was yet another editor’s note, which ran on March 23 and admitted, “For its profile, The Times did not conduct adequate interviews or public record checks to verify Ms. Fenton’s account, including her claim that she had lived in Biloxi.” An accompanying article, also written by Confessore, admitted that “The Times did not verify many aspects of Ms. Fenton’s claims, never interviewed her children, and did not confirm the identity of the man she described as her husband.” Her children were not even in her custody; they had either been placed in foster care or adopted.

The shoddy, sometimes yellow journalism in New Orleans after Hurricane Katrina was just a warm-up for the unseemly haste in declaring lacrosse players at Duke University guilty of a heinous rape, which in the
Times’
script reflected a pattern of white supremacy deeply embedded in American culture. In reality, it was another fraud. The reporting on the case stands as the most unjust example of an obsession with race and an insistence on spotlighting racism as the quintessential American evil.

The case began in late March 2006 when one of two local black exotic dancers hired to perform at a lacrosse team party claimed she was raped, hit, kicked, strangled and sodomized by at least three players that evening, in a brutal assault that took place over a thirty-minute period. The Duke campus was convulsed with racial rage, egged on by the media as it played out a narrative of overprivileged white men abusing a poor single mother who was compelled to strip in order to support her child. Wanted posters went up on campus with pictures of the accused and calls for their castration. Eighty-eight members of the faculty sponsored an ad in the college paper effectively supporting the protesters. The university’s president suspended two of the accused upon their
indictment (the third had already graduated), cancelled the rest of the season for the lacrosse team, and forced the coach to resign. Racial unrest flared throughout the town of Durham, with black activists and militants creating so threatening an environment that some students left campus.

Within a few weeks, however, the case was exposed as a malicious fiction. The stripper’s accusations were dismissed as utterly false, and the indictment itself was shown to have been the result of investigative irregularities and prosecutorial lies. Durham’s district attorney, Michael Nifong, was forced to step down and ultimately disbarred for ethics violations; he also served a symbolic one-day jail sentence. Meanwhile, Duke University settled with the students for an undisclosed sum.

KC Johnson, a historian who ran a blog documenting the case, “Durham-in-Wonderland,” called the Duke rape saga “the highest-profile case of prosecutorial misconduct in modern American history.” Shortly after the case imploded, Peter Applebome, a
New York Times
columnist and Duke alumnus whose son was attending the school, asked: “How did college kids with no shortage of character witnesses become such a free-fire zone for the correct thinkers in academia, the news media and the socially conscious left? . . . Why did denouncing them remain fair game long after it was clear that the charges against them could not be true, and that even most of the misbehavior originally alleged about the team party was distorted or false?”