Thursday, June 3, 2010

The Media and Historical Research

Jan Crawford of CBS News reported this evening on memos Elena Kagan wrote as a law clerk for Justice Thurgood Marshall. Having clerked for him myself -- and having myself been the subject of mildly misleading inferences drawn from memos and similar documents in Marshall's papers -- I don't want to comment (much) on the substance of the report, although I can't refrain from observing that one thing a good law clerk does (or at least did, in the Judge's chambers) is anticipate the justice's views on cases up for argument. (Recall that that was William Rehnquist's defense of his memo to Robert Jackson urging that Plessy v. Ferguson should be reaffirmed in Brown v. Board of Education. [My view is that other evidence indicated that Rehnquist's characterization was misleading to the extent that it represented that Rehnquist was simply sketching one side of Jackson's thinking without himself endorsing it. But without that other evidence his characterization would be unexceptionable.]) Inferring Kagan's views -- especially her current views -- from law clerk Kagan's memos is an iffy proposition: The inferences might be right, but they have to be discounted in light of chambers practices.

For me, the more interesting aspect of Crawford's reporting is the way she characterizes the process of finding the memos. She describes the memos as "obtained by CBS News" and as "buried in Marshall's paper in the Library of Congress." Obviously, CBS News did obtain the memos, and I suppose that someone unfamiliar with archival practices might describe putting memos in file folders -- clearly labeled with case names or numbers -- as "burying" them. But, geez Louise, ALL YOU HAD TO DO TO GET THE MEMOS WAS ASK FOR THE BOXES CONTAINING THE MEMOS WRITTEN DURING THE TERM KAGAN CLERKED FOR MARSHALL. Frankly, I'm surprised that it took so long for a reporter to walk over to the Library of Congress Manuscript Division and do just that.