How Does a Lady Get Any Sleep Around Here?

The media worked itself up, and tired itself out, talking about whether or not Justice Ruth Bader Ginsburg fell asleep while a case was being argued before the Supreme Court.

By all accounts, yesterday afternoon’s special session at the Supreme Court was tough to get through. As the court heard oral arguments on the constitutionality of Tom DeLay’s 2003 Texas redistricting plan, one justice in particular had a difficult time staying alert, leading to a pig pile of sorts by print and broadcast media.

“Yesterday was killer for the Supreme Court justices. Two hours of oral argument in the morning, a short lunch break, followed by two more hours of argument in the Texas redistricting case,” wrote ABC News legal affairs correspondent Manuel Medrano on his blog, Order in the Court. “As the lawyers droned on, and the questions became more technical, I scanned the courtroom and noticed several observers struggling to stay awake.”

One of those who “seemed to be having a hard time,” wrote Medrano, was Justice Ruth Bader Ginsburg: “Longtime court sketch artist Bill Hennessey told me that as the day was winding down, he saw Ginsburg lower her head for up to 15 minutes. Hennessey — who says he had never seen this before — speculates she might have been asleep.”

So at the end of a long day, recently returned from a visit to a faraway land, Ginsburg, 72, got a little drowsy. Embarrassing — as this screen grab indicates — but we all get sleepy sometimes. Said Medrano: “This caused quite a stir at ABC, sparking interest and debate about whether this was something we should report. ‘Hold on,’ I said. This was really much ado about nothing.”

As such, ABC showed some restraint, choosing not to mention the snoozing of our high court’s lone female justice on air. Many of ABC’s journalistic peers, however, plowed straight ahead:

“The long day took a toll on Ginsburg, who nodded off for about 15 minutes as the argument wound down,” reported Bloomberg. “Court spokeswoman Kathy Arberg said Ginsburg, who recently returned from a trip to South Africa, had no comment.”

“The subject matter was extremely technical, and near the end of the argument Justice Ruth Bader Ginsburg dozed in her chair,” noted the Associated Press. “Justices David Souter and Samuel Alito, who flank the 72-year-old, looked at her but did not give her a nudge.” (The AP did, though.)

In his Washington Post column, Dana Milbank gave his own little jab, writing that the geometric discussion of three congressional districts in Texas “evidently did not interest Justice Ruth Bader Ginsburg. At first, she appeared to be reading something in her lap. But after a while, it became clear: Ginsburg was napping on the bench.”

“It’s lucky for Ginsburg that the Supreme Court has so far refused to allow television in the courtroom,” Milbank added, “for her visit to the land of nod would have found its way onto late-night shows.”

Never mind late night — Fox News and CNN have it covered. Discarding the weightier issues that encompass the Texas redistricting case (aptly summarized by Milbank as “the fate of minority voting rights; the principle of one man, one vote; the balance of power in the House of Representatives; and political gerrymandering that protects 98 percent of incumbents in both parties from challengers”), Fox correspondent Megyn Kendall chose to lead off her story on the Special Report with Brit Hume last night with the news that Ginsburg appeared to have fallen asleep. Not to be outdone, CNN’s Carol Costello, Miles O’Brien and Kelly Wallace engaged in extended bantering on Ginsburg’s moment of weakness earlier today. On American Morning, groggy viewers were treated to this smart exchange:

COSTELLO: I know [the case is] pretty dry stuff, but it is very important. But for one justice it may be more than just a little drawn out. The Associated Press is reporting that Justice Ruth Bader Ginsburg actually nodded off during testimony. Justices Souter and Alito sit on either side of her, though neither of them bothered to wake her up.

WALLACE: Neither gave her a little hey, justice, come on, pay attention.

O’BRIEN: So what if she — she might have needed a nap. I mean …

COSTELLO: Well she did. And it’s funny you should say that.

O’BRIEN: Would you have awakened her? Would you have awakened her?


O’BRIEN: I would never awake. Let sleeping justices lie is what I say. Yes.

WALLACE: I’d do a little tap and this isn’t looking so good.

Eventually Costello suggested that Anna Nicole Smith’s appearance before the court the day before might have worn Ginsburg out, leading the on-air talent to finally give the justice a break as they turned their chatter to the former Playmate’s looks.

All of the above seems to us far more ink spilled and airtime wasted than is justified by such an inconsequential event, even for the maw of cable news. Not so for NewsBusters’ Scott Whitlock, who argued this afternoon that the media pretended not to notice Ginsburg’s dozing. Said Whitlock: “Not one of the three broadcast evening news programs sought fit to mention Ginsburg’s nap, although both NBC Nightly News and the CBS Evening News covered the hearing.”

In other words, the three biggies, unlike many of their aforementioned colleagues, did indeed decide that this “story” wouldn’t be the best use of their time.

At, however, Medrano blogged that Ginsburg deserved “the benefit of the doubt”: “I told my colleagues that before we go down a road of castigating a Supreme Court justice for having trouble staying alert, or worse, hinting that this might be health-related for a 72-year-old woman who has fought and beaten cancer, we need to understand the context.”

Perversely, by posting those words, however, ABC inadvertently accomplished what it sought to avoid by not broadcasting a story. If ABC had really wanted to give Ginsburg the benefit of the doubt, it should have tried harder to understand this maxim of modern media:

Blogging equals publishing.

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Edward B. Colby was a writer at CJR Daily.