Bartley's Believe it Or Not!

On February 8, The Wall Street Journal published a lengthy editorial called "The Clinton Judges," arguing that a Miami corporate litigator, Bruce Greer, should not get a seat on the federal bench. Although he had been recommended in 1993 by Senator Bob Graham, a Florida Democrat, and officially nominated in 1995, confirmation hearings before the Senate Judiciary Committee kept being postponed -- from December to January and then to mid-February, the week after the Journal editorial appeared.

 Greer's deficiencies, as laid out in the Journal, centered on a lot of guilt by association, some of it pretty remote:

 * A partner in Greer's law firm had committed suicide some eleven years ago when it was discovered that his client's securities firm had engaged in a massive fraud.

 * The law firm had once employed "radical feminist lawyer Patricia Ireland and Jack Ryan, until recently acting head of the Resolution Trust Corp." and onetime head of banking supervision and regulation at the Federal Reserve, whom the editorial linked to "one of the unanswered questions of the Whitewater probe."

 * One of Greer's clients had been David Paul, chairman of the CenTrust Savings Bank, which collapsed shortly after the savings and loan crisis, who went to prison and was ordered to pay $65 million for "looting CenTrust."

 The editorial then moved on to Greer's wife, an attorney and real estate developer. "The $12 million in assets Mr. Greer and his lawyer wife list on their financial disclosure form includes a $900,000 limited partnership in Cen Office Building Ltd. Public records in Florida indicate that the property was once owned by CenTrust. The details of this transaction should be explored."

 Had anyone explored the arrangement, it would have become clear that the property was never owned by CenTrust Bank nor did CenTrust have any connection to it. The property simply shared an unfortunate coincidence of names. The building had been named Cen Office eleven years before Evelyn Greer's involvement because of its proximity to Century Village, a large retirement community in Broward County.

 The editorial concluded with the Olympian observation that "lawyers are entitled to have clients and those clients are likely to be people in trouble with the law," and added, "there is no reason to accuse Mr. Greer of anything criminal, and no one has done so." But it questioned whether someone who might have at one time represented unsavory characters should be rewarded with a "lifetime appointment to the federal judiciary" and concluded, "In that context, his list of associations is far too rich for our blood."

 The day after the Greer editorial appeared, Senate Judiciary Chairman Orrin Hatch took to the Senate floor to denounce judges who were soft on crime, and he linked those judges to the president who appoints them. Shortly afterward Greer got word there would be no hearing; the nomination was dead, and on February 13, fed up with political shenanigans, Greer notified President Clinton he was withdrawing his name.

 A month after the editorial, the Journal published a letter from Miami attorney Barton Sacher, who as an SEC official in the eighties often opposed clients Greer defended. "Your off-base personal attacks against Mr. Greer and his wife -- predicated solely on misleading innuendo and inaccurate facts -- bear a striking resemblance to McCarthyism at its worst," Sacher wrote. That was as close as theJournal came to any correction. By then, of course, it didn't matter.

 The Journal's editorial page, written by its staff of thirty writers and editors, is in a class by itself. It is unquestionably influential, serving as a bulletin board for conservative thought and opinion. (The Greer editorial, for instance, signaled a campaign issue for Republicans -- the "liberal Clinton judges" -- which has resonated through the media ever since.) It is stylish, clearly written, rarely dull, and often fun to read. It has a clear point of view and avoids equivocation. No "on the one hand" and " on the other hand" commentary here.

 Unlike the Journal's meticulously researched in-depth news columns, which many consider a model of journalistic excellence, the editorial page rarely offers balance, is often unfair, and is riddled with errors -- distortions and outright falsehoods of every kind and stripe. And when the errors are challenged, the Journal is less than eager to set the record straight. The page might stand accused of sloppiness except that the errors always seem to bolster the Journal's point of view. Under editor Robert Bartley, the policy seems to be ideology above all else.

 "People complain all the time with good reason," says Michael Kinsley, who was a Journal columnist for three years until 1987. Kinsley himself clashed with the Journal a few years ago when, in his New Republic column, he criticized its editorials about White House counsel Vincent Foster and the Rose law firm as shoddy and dishonest. The Journal later attacked Kinsley for blaming the editorial page for Foster's death (which Kinsley didn't do) and implying that the White House put him up to it, which Kinsley says it didn't.

 CJR examined some six dozen examples of disputed editorials and op-eds over the past seven years, and a clear sense of Bartley's modus operandi emerged. On subjects ranging from lawyers, judges, and product liability suits to campus and social issues, a strong America, and of course, economics, we found a consistent pattern of incorrect facts, ignored or incomplete facts, missing facts, uncorroborated facts. Repeated efforts to discuss the paper's editorial practices with Bartley were unsuccessful. Absent a conversation with him about the section's objectives, one can only conclude that affecting policy and changing the course of history matter most.

 Greer's wasn't the only judicial appointment to feel the Journal's punch. In late 1994 it targeted Peter Edelman, then counselor to the Secretary of Health and Human Services, who was being considered for a seat on the U.S. Court of Appeals for the District of Columbia circuit. The Journal said that when Edelman was director of New York State's Division for Youth in 1978, he ordered a one-week furlough for a seventeen-year-old who had knifed a girl during a robbery. While on his furlough, the youth was arrested on charges of raping, robbing, and trying to electrocute a sixty-three-year-old woman.

 That the Journal's charge was not true was eventually pointed out in a letter, published about three weeks later, written by J. Thomas Mullen, president of the Catholic Charities Services Corp. in Cleveland, who had worked with Edelman in New York.Under the structure of the agency, Edelman did not order transfers or furloughs, but he could override them, particularly when there was a concern about security, which he did in this case. But by the time he had ordered the boy picked up and returned to the facility, it was too late.

 It was also too late for Edelman's nomination. Under pressure from the right wing's judicial attack machine, Clinton got cold feet, and Edelman's name never went to the Senate.

 The paper's ruthlessness in assaulting judicial enemies is matched by its zeal in defending (by the same means) friends it thinks the legal system has maligned. Consider the case of Elliott Abrams, assistant secretary of state in the Reagan administration, who in 1991 pleaded guilty to withholding information from Congress during the Iran-Contra affair. In a short, breezy editorial last summer called "Iran-Contra Epilogue," the Journal said "one of the worst abuses to emerge from the Iran-Contra jihad against Reaganites was ended this week: The U.S. Court of Appeals for the District of Columbia ruled that the D.C. bar association couldn't block Elliott Abrams from practicing law for a year," adding that "the liberal shock troops of the D.C. bar nonetheless insisted on punishing him."

 The editorial included three major errors. First, it named the wrong court. The ruling had come from the District of Columbia Court of Appeals, not the U.S. Court of Appeals. Second, the case was brought by the Bar Counsel, an arm of the D.C. Court of Appeals that is appointed by the Court's Board on Professional Responsibility, which is responsible for disciplining lawyers, not the D.C. Bar Association, which does not decide or bring disciplinary actions. Third, the Bar Counsel had no choice but to bring the case; under court rules it must initiate proceedings against any member of the bar who is convicted of a crime that violates disciplinary rules. Hamilton Fox, chairman of the Board on Professional Responsibility, pointed out the mistakes in a letter the Journal published nearly one month later.

 Such inaccurate portrayals of judicial and legal matters have a long history at the Journal. In 1989, The American Lawyer published a scathing critique of three editorial-page commentaries by theJournal's then assistant editorial page editor, L. Gordon Crovitz. The article, by Stuart Taylor, Jr., charged that the Journal editorials and op-eds, which discussed the 1977 veto by Massachusetts Governor Michael Dukakis of a bill that would have required teachers to lead students in reciting the Pledge of Allegiance, were "riddled with inaccuracies" and "grossly distorted the state of the law," and that "a businessman who relies on the Journal may well have concluded from Crovitz's pieces on the pledge t hat legal precedents supported the law Dukakis vetoed. The opposite was true."

 "They were almost indifferent as to whether what they wanted to say comported with dispassionate factual reality," says Taylor, who is now a senior writer at The American Lawyer. "If my article caused him [Bartley] any grief, it escaped my attention." (Crovitz went on to bigger and better things at Dow Jones and is now the editor and publisher of the Far Eastern Economic Review.) Says Taylor: "I think the general pattern of their gonzo attitude continues."

 Product liability and fraud suits bring out the Journal's highest-octane gonzo response. For example, the day after an Albuquerque Tribune reporter, Eileen Welsome, won a Pulitzer Prize in 1994 for disclosing that the government had conducted radiation experiments on unsuspecting citizens without their consent, Max Boot, an assistant features editor for the editorial page, mocked her series in an op-ed, saying there was nothing particularly new to report and that the hype over the experiments "far exceeds their news value." Toward the end of the piece Boot got to his real problem with the series: families of the victims highlighted in Welsome's stories might sue. "It'll be the attorneys -- not the alleged victims -- who'll receive the most compensation. That's the fallout from the radiation experiments story 'uncovered' by Eileen Welsome," Boot wrote.

 A letter from Tim Gallagher, who was the Tribune's editor and is now editor of the Ventura, California, County Star, was published nearly two months later.

 In response both to Boot's op-ed and two letter s that attacked Welsome's series, Gallagher wrote that Boot had failed to summarize Welsome's work accurately. The Tribune didn't claim to be the first to report that people were injected with plutonium, and it credited others who had; the Tribune did claim to be the first media institution to identify victims and report that they had never given informed consent for the experiment, and pointed out that the federal government had attempted to hide their identities for fifty years.

 Last summer, with a bill limiting the ability of investors to sue for securities fraud bogged down in a conference committee, the Journal wrote an editorial titled "Brazen Beyond Limit?" that came to the defense of Representative Christopher Cox, one of the bill's sponsors. Cox had been named as a defendant in a lawsuit filed on behalf of some of the 8,000 investors in a fraudulent investment scheme called First Pension. (Investors lost $136 million, and the principals are now in jail.)

 The editorial brushed off Cox's involvement as minimal. It argued that as the victim of "lawsuit abuse," he had to "waste time, energy, and money mounting a defense against baseless charges." To persuade readers that there was no case against Cox, the editorial emphasized a preliminary ruling by a judge who was no longer hearing the case and ignored the fact that the case had been transferred to the court's complex-litigation division seven days before the Journal published its editorial. (Contrary to the Journal's assertion of baseless charges, the suit is proceeding, and Cox remains a defendant.*  The paper has carried no news account about court rulings this spring that have kept Cox in the case, although California papers did.) The editorial also implied that naming Cox as a defendant was politically motivated and attacked the investors' attorney, Michael Aguirre, who the Journal said had "repeatedly and unsuccessfully run for political office in San Diego as a Democrat" (he ran twice for nonpartisan City Council office and once for Congress, as a Democrat, fourteen years ago).

 The Journal also attacked news stories, including the paper's own, that questioned whether Cox was trying to abolish the kind of lawsuit that was filed against him.

 Harry Farrar, one of the defrauded investors in the First Pension case, wrote a letter to the Journal complaining of errors in the piece, made numerous follow-up calls, and sent two letters to publisher Peter Kann asking his help in getting a letter of correction printed. When he got no response, Farrar, in frustration, contacted CJR. "If they had allowed us to point out the errors, it would have detracted from their thrust to get the [securities] legislation moving," Aguirre told CJR.

 In March the paper took another whack at plaintiffs' lawyers with an editorial arguing that damages in product liability suits should be limited. It noted that a bill making its way through the Senate was the best it was likely to pass, since "most Democrat s and some Republicans are deeply dependent on trial lawyers as campaign contributors." That statement was a misleading half-truth at best. Ninety-nine political action committees set up by members of the American Tort Reform Association, a who's who of business and trade organizations that want to limit liability, gave $26.2 million to members of Congress and candidates during the 1994 election cycle and in calendar year 1995, compared with $2.9 million given by the Association of Trial Lawyers of America.

 Other examples abound of facts not standing in the way of Journal logic. Earlier this year Boot wrote an op-ed claiming that Proposition 103, which regulated auto insurance rates in California, didn't work. Actually, it did: premiums that had been rising faster than the rates countrywide have turned around; in the past five years, the increase was 88 percent lower than rates throughout the U.S. Four months before Boot's op-ed appeared, the Consumer Federation of America had issued a report a nd press release detailing the successful California experience. A couple of weeks after the op-ed, the Journal published a letter from J. Robert Hunter, the former insurance commissioner of Texas who had written the CFA report, pointing out the Journal's errors.

 In an editorial last June attacking subsidies to the U.S. Merchant Marine, theJournal claimed that U.S. mariners earn an average of $125,000 for six months' duty. If the paper had called the Maritime Administration at the Department of Transportation, it would have discovered that on average a U.S. mariner earns about half of that. The error was pointed out in letters, almost one month later, from a couple of mariners, one of whom wanted to know where he could find those high-paying jobs. The head of the Maritime Administration was sufficiently exercised to make a public statement about the error.

 An August 1994 editorial about the Smithsonian Institution's Enola Gay exhibit said that ". . . it is especially curious to note the oozing romanticism with which the Enola show's writers describe the kamikaze pilots. . . . These were, the script elegiacally relates, 'youths, their bodies overflowing with life.' Of the youth and life of the Americans who fought and bled in the Pacific there is no mention." Contrary to the Journal's outraged presentation, the quote did not originate with Smithsonian curators; the words were written by a Japanese kamikaze pilot who had survived the war, an attribution the original script made crystal clear. "If they said it was written by a Japanese pilot, it would have undercut their point," says Tony Capaccio, editor of Defense Week, who has written about press coverage of the Enola Gay affair.

In his annual statement to readers last January, publisher Peter Kann proudly described the paper's correction policy. He certainly did not intend to point up the stark contrast between the two branches of the paper, but his comments about the daily Corrections & Amplification column clearly apply only to the news pages. He said it is "a constant reminder of the shortcomings of even the most painstaking reporting and editing process. Last year we published more than 500 items setting the record straight as well as more than a thousand letters from readers often taking issue withJournal news or views. . . . Our clear policy, however, is to correct errors and offer opportunity for reader response. We believe this enhances credibility and reinforces reader trust."

 The editorial page seems to have a slightly different policy. It appears to wait for a letter of correc tion or complaint, which is usually run two to four weeks later. Correction boxes on the editorial page are apparently reserved for misattributed quotations, spelling errors and mismatched books and authors on the Leisure & Arts page, incomplete attributions, and misplaced quotation marks. Delays in publishing letters of correction can undermine the correction itself.

 By the time a letter is published, most readers have forgotten what the editorial said, the des ired goal may have been achieved (as in the case of Bruce Greer), or the disputed information may have been picked up by other media. The Washington Post, for example, repeated the inaccuracy in a news story about the Enola Gay exhibit the day after theJournal's editorial appeared and used the inaccurate passage to bolster the views of the exhibit's critics. A letter writer who has an especially high profile may have his or her say within a day or two of the offending editorial, but that's rare. So are correction boxes that admit to the kinds of errors examined for this story.

 Other papers are more likely to use correction boxes for serious factual errors on their editorial pages and save the letters columns for differences of opinion. The Washington Post, whose editorial page is on an influential par with the Journal's, corrects such errors that way. "If we make them, we correct them. We hate to do it, but we do it," says deputy editorial page editor Stephen Rosenfeld. "You have to be more rigorous than the news columns because matters are very contentious."

 An error Rosenfeld made recently in one of his op-ed columns points up the difference between the Post and Journal approaches. Rosenfeld called former strategic arms negotiator Max Kampelman a "former Democrat." Kampelman was always a Democrat, and Rosenfeld forthrightly corrected his error in a column two weeks later. When the Journal made a similar mistake, claiming that Senator Thad Cochran of Mississippi was a member of the plaintiff's bar -- in other words, a trial lawyer, one of its regular targets -- it waited for him to write a letter saying he was not.

 It's impossible to say how many errors go uncorrected. A case in point deals with misinformation familiar to CJR readers. In mid-March, the Journal wrote about the health reform bill then making its way through Congress, and attacked an insurance concept called "guaranteed issue" that requires carriers to offer policies to anyone, regardless of health. It argued that when New York required insurers to sell guaranteed issue policies and eliminated most premium variations based on health risk, "500,000 individuals have been forced to drop their insurance coverage." The January/February 1995 issue of CJR showed how that number was false and had been derived from a misleading study by an actuarial consultant employed by insurance interests that had much to gain by discrediting the New York experience. If any letters were sent to the Journal disputing that statistic, none ever appeared.

 Last summer theJournal ran two op-eds and one review critiquing a well-publicized book on wealth inequality by a New York University economics pro fessor, Edward Wolff. But it refused to print a letter from Wolff correcting some errors and distortions that appeared in the pieces. For example, in one, the writer inaccurately claimed that Wolff had used only two years' worth of data and ignored pensio n wealth. Said Wolff: "They weren't interested in getting to the truth of the matter but more interested in presenting a political position on income equality."

 The White House couldn't get a correction after the Journal wrote that Hillary Clint on had intervened to suppress allegations of sexual harassment at the Corporation for Public Broadcasting, a charge the Journal had picked up fromThe Sunday Times of London. The White House had denied the allegation before the Journal published its editorial. Bartley told Washington Post reporter Howard Kurtz that the Journal was aware that the First Lady had denied the charge. "We meant to include that," he told Kurtz. But "if you've got 600 words, something has to give."

 *In March, 1998, two years after this article was written, the Superior Court of the State of California for Orange County, dismissed all claims against Representative Christopher Cox. Cox notes that "the reason that the suit was dismissed as to me is that, despite the complexity of the rest of the case, I did not even work for the defendant law firm when the allegedly fraudulent public offering occurred (and hadn't for over a year)."

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