The Senate Daily Press Gallery announced yesterday that it did not err in April by rejecting SCOTUSblog’s application for press credentials, thus confirming that it did err in April 2013 by granting SCOTUSblog’s application for press credentials. The gallery explained the reversal by … making no reference to it. Confused? Welcome to the Senate Daily Press Gallery.
It’s not entirely clear how we got here. Although the gallery’s latest decision did include some reasoning (more below), its earlier decisions—first to credential the site and later not to renew the credential—were made without comment. Moreover, the gallery’s Standing Committee, the group of journalists who handle applications for Senate credentials, has been anything but transparent throughout the decision-making process, such as it is (again, more below).
Beyond those procedural issues, the substance of the committee’s decision, and the questions it put to SCOTUSblog during the appeal process, raise a number of concerns. The merits of SCOTUSblog’s application are complicated. But the committee repeatedly interpreted its rules in the most restrictive way possible, and failed to appreciate the strength of the editorial firewalls SCOTUSblog has built. Underlying both of those stances is an apparent preference for traditional media forms, at a time when the turmoil in the news industry makes non-traditional outlets more vital than ever to public affairs reporting.
In a post commenting on yesterday’s decision, SCOTUSblog publisher Tom Goldstein wrote, “It seems a shame to erect obstacles to access when organizations like ours share the values and further the goals of journalism. We reach a lot of people. No organization in the nation’s history has devoted nearly the resources we have in covering this important institution.”
Against that backdrop, let’s take a closer look at the Standing Committee’s decision and the events that led up to it.
A brief history
SCOTUSblog is not—and never has been—credentialed by the Supreme Court, which historically has given hard passes only to journalists and news organizations that have credentials from the Senate or White House (the White House, in turn, makes Senate credentials a prerequisite).
Goldstein approached the gallery in 2004, around the time he hired Lyle Denniston as SCOTUSblog’s lead reporter, to discuss whether the site could be credentialed. He said the gallery told him then and thereafter, for eight years, it would not be worthwhile to apply, for various reasons. Denniston uses his hard pass for WBUR, for which he also files stories, to report for SCOTUSblog.
In 2013, after the site secured its Bloomberg sponsorship and developed firewalls to separate the site from Goldstein’s law firm, the gallery credentialed SCOTUSblog. Goldstein later wrote that the Court declined to recognize that credential, saying instead it would review its credentialing policy. That review is ongoing.
Finally, two months ago, the Standing Committee rejected SCOTUSblog’s application for credentials—to renew Denniston’s pass and to obtain a second pass for Amy Howe, the site’s editor. Goldstein asked the gallery to reconsider its decision, which it did not explain, at its May meeting—and things got interesting.
The appeal hearing
Goldstein appeared alongside Denniston, for 90 minutes, at the Standing Committee’s meeting May 23 to petition for a credential and answer questions. Committee chairwoman Siobhan Hughes, of The Wall Street Journal, opened the hearing by saying the gallery doesn’t “make decisions based on popular pressure” and that she “personally” feels “great pressure to get this right.”
Hughes also said the burden of proof is on the applicant and that “we have to feel satisfied that the applicant and his or her publication both qualify” under the credentialing rules. However, she did not explain the burden—the necessary extent of the satisfaction—at the hearing or otherwise, a notable omission because it’s not enough to say the burden is on one party if that party doesn’t know how far he must go to meet the burden.
For her part, gallery director Laura Lytle, who doesn’t serve on the committee, told CJR at the hearing that written rules govern the committee’s decision-making process—but in emails later she described the rules as “informal” and unwritten. [Update: After this article was published Lytle contacted CJR to emphasize that the committee has written rules, but not written rules governing the appeals process. CJR’s initial query about whether written rules govern the appeals process was not clear to her, she said.]
During the hearing, the committee members—Peter Urban, of Stephens Media; Colby Itkowitz, of The Washington Post; Kate Hunter, of Bloomberg; Emily Ethridge, of CQ/Roll Call; and Hughes—devoted most of their questions to editorial independence. Goldstein’s dual ownership of the blog and firm, and his role at each, was clearly a concern. Several times, Goldstein likened himself to media owners, such as Jeff Bezos, who wear multiple hats that are not all journalistic. In response, Itkowitz said Bezos isn’t the Post’s publisher, and Amazon employees aren’t writing for the paper.