An Error, an Oversight, and an Overreaction

A closer look at the Domenech/CBS/White House imbroglio

Is there anything left to say about the Domenech-Kagan affair? Howard Kurtz’s story in last Friday’s Washington Post describing the episode—in which CBS News invited the fury of the White House by posting an item by a conservative blogger that erroneously asserted that Elena Kagan, the solicitor general and a top candidate for the vacant seat on the Supreme Court, was “openly gay”—has already elicited plenty of commentary. And, as Dahlia Lithwick and Emily Bazelon write in Slate, the discussion has tended to circle around the “is she”/”isn’t she” question, which should be immaterial.

But before we take Lithwick and Bazelon’s good advice to shut up, it’s worth taking a closer look at how this episode unfolded. A little examination suggests that while this was hardly flawless journalistic practice, the element that may be hardest to understand is the angry response from the White House, which elevated a fairly obscure slip-up to a story that will hang over the rest of the nomination process.

Let’s start with the piece itself, which was written by Ben Domenech—a blogger best known for some prior journalistic sins—and published on April 11 on The New Ledger, a conservative Web site he edits. The post was a look at the “top 10” candidates for the court vacancy, with the political pluses/minuses for each; it was a pretty unremarkable bit of commentary, with the intended buzz coming from Domenech’s inclusion of Hillary Clinton at the bottom of the list. The claim about Kagan’s sexual orientation was listed as her “plus,” because it “would please much of Obama’s base.” (At least one critic has faulted Domenech for “reducing Kagan to her sexuality,” which is fair, though it’s worth remembering that none of the other candidates was the subject of a detailed exegesis.)

Domenech’s statement about Kagan has been described as him passing on a rumor, perhaps in service of a right-wing smear campaign. And he used that language himself in a subsequent response, in which he apologized to Kagan for his “repetition of a Harvard rumor.” But it seems more likely that Domenech just made a mistake. In a response at The Huffington Post, Domenech wrote Friday he believed Kagan was an out lesbian “because it had been mentioned casually on multiple occasions by friends and colleagues—including students at Harvard, Hill staffers, and in the sphere of legal academia—who know Kagan personally.”

Asked via e-mail if he’d done anything to confirm that understanding before publishing the post, he elaborated:

I was not under the impression I was outing her in any way—I thought, as apparently many others did, that she was openly gay. I have a close Democrat friend who went to Harvard Law and knew Kagan there, and she had confirmed this to me a few days prior to writing the piece. I also shared the post in advance with a group of high-level DC/NYC attorneys just for the sake of fact-checking and reactions to my characterizations of the candidates, and none of them said anything about the description of Kagan being wrong.

(Domenech didn’t provide the names of his correspondents, but, as his HuffPost response notes, at least some other people also held this mistaken belief.)

But after the post went live at The New Ledger, Domenech says, another source from the legal world contacted him to say Kagan was not in fact out. He looked around on the Web, discovered that the topic is an issue of abundant speculation on gay and lesbian blogs and news sites, and added an update the same day which said that “Kagan is apparently still closeted—odd, because her female partner is well known in Harvard circles.”

It was a strangely worded update—if accurate, it amounted to an acknowledgement of outing Kagan, a practice that’s generally frowned upon, at least by the mainstream media; and the reference to “her female partner” feels gratuitous. But it’s also not clear exactly what Domenech should have done at that point, based on what he believed he knew: if he had inadvertently outed her, the damage was done.

What clearly should not have happened was what happened next: a few days later, CBS, which has an arrangement to republish some of Domenech’s material in its opinion section, picked up the post, with both the claim about Kagan being “openly gay” and the update about her being “still closeted” intact. That language should have been a big red flag saying “you’re about to out the solicitor general on a major news site”; the fact that it went live nonetheless suggests no one at CBS even read the item before posting it. (Both Dan Farber, the site’s editor, and a CBS spokeswoman declined to comment, though Farber told Kurtz the piece “just got through our filters.”)

Asked why he had allowed the post to be picked up in that condition, Domenech said he had e-mailed the link to CBS when the item first went live at The New Ledger; since several days had elapsed, he had assumed it wouldn’t be used. “Had I known they were going to [republish it] and in the absence of a statement from [the White House] or Kagan I probably would have rewritten that section to just not mention it at all because it was clear as mud,” he said.

Besides CBS’s failure to flag the item, what else should have been done differently here? Farber, who told Kurtz that Domenech had engaged in “pure and irresponsible speculation,” declined to comment on what would have constituted responsible reporting. For his part, Domenech said, “If I had thought it would be this controversial, I would absolutely have called her office to ask first.” The trouble, of course, is that he didn’t think it was controversial—in addition to what he’d been told by people he believed were in a position to know, it would hardly have been an unprecedented development, as two other people whose names have been bandied about for the court, Pam Karlan and Kathleen Sullivan, are “openly gay” (and nobody expects reporters to call their office for confirmation every time before they report that fact).

Still, relying on secondary (or tertiary) sources is hardly ironclad, and given the unfortunate skittishness that still surrounds homosexuality in our political culture—not to mention the difficulty involved in beating back misinformation once it’s been published—Domenech should have done more to confirm what he believed. If he’d even taken to Google or Lexis to find an instance of Kagan discussing her sexual orientation, this whole mess might have been avoided when he failed to find one. He can take his lumps. But as mistakes go, this seems a fairly ordinary one.

And it might have remained a fairly inconsequential one, if the White House had not seized on it. But according to Kurtz’s article, the White House wasn’t satisfied until CBS deleted the entire post. Then, when contacted by Kurtz, a White House spokesman said the story had contained “false charges”—as if being gay is a serious offense—and Anita Dunn, who’d led the way in the White House’s feud with Fox, broke out the heavy verbal artillery, essentially questioning CBS’s journalistic integrity. As Alex Pareene and Chris Rovzar note, the intensity of this reaction is mystifying. Being gay is not a bad thing. Domenech’s item didn’t say it was a bad thing. And while, despite the fact that being gay is not a bad thing, outing someone generally is a bad thing, according to the White House Domenech hadn’t even outed Kagan, because she’s not gay! As Pareene said, “Wouldn’t it be much nicer and more progressive to politely ask for a correction and say it’s no biggie?” Based on what we know, it’s hard to understand why the White House didn’t do that, and also hard to understand why CBS acceded.

Well—maybe not so hard to understand, considering that, as Sam Stein reports, Dunn is leading a White House effort that is “offering pushback [against criticism] for everyone on the president’s short list,” Kagan especially. Given the modern media environment, and the likelihood that there will be attempts from some of Obama’s political opponents to discredit whomever he selects, it’s not at all surprising that the White House is taking these steps. But the overreaction to what was really an unfortunate bit of sloppiness points to the peril of these operations. When all you’ve got is a hammer, everything looks like a nail; and when you’re running a rapid-response shop, every error looks like a conspiracy.

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Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.