The different degrees of no flinching

Dahlia Lithwick in her article regarding the Al-Kidd oral argument says this:

Justice Sonia Sotomayor gives off the first trace of raised dander when she retorts, "You don't think there's a reason to make prosecutors flinch against willy-nilly … out of pure investigative reasoning, out of whatever motive they have, just lock people up?" To which Katyal replies, "Making prosecutors flinch is always a bad thing."

Katyal first speaks against damage suits, noting:

"No doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties."

Then, Sotomayor replies with a question trying to limit the absolute discretion of the prosecutor; Katyal pushes for a broader discretion, again concerned about causing prosecutors to "flinch the performance of their duties more generally." Sotomayor replies in part with the reference cited by the article. Then, the transcript has Katyal saying "making persecutors flinch is -- is -- always a bad thing." He already worried about flinching twice. So, his priorities seems apparent. But, that lower case "m" turns out to be important.

Listening to the audio and reading on in the transcript, his final "flinch" is not as blatant as suggested by the article (cited by me here). Katyal and Sotomayor are actually talking over each other there. Katyal says "you're" (Sotomayor) saying [I'm saying] flinching is always a bad thing. He clarifies that he means:

What I'm referring to is this Court's precedents that say damages liability on prosecutors is the wrong way to go about it [causing the flinching] because the costs are too high compared to the benefits

and lists other means. Scalia helps him note that there are other procedures [arguably less useful, which is why damage suits are available in such cases in other contexts] "there in order to make them flinch in a different" way and Katyal says this is "precisely correct." He  then says these other measures are not "constitutionally compelled," underlining can be less restrictive in practice.

So, Katyal, to me, clearly has the mentality that flinching is a bad thing and that damage actions even in cases like this are bad for that reason. But, the quote used in the article is arguably a bit misleading without noting what he said right afterward.  And, it is not really the first time that Dahlia was a bit too fast and loose with the issues, which is at times more problematic when the law is involved since such details often matter in specific cases.

It also aggravates the sentiments of some already turned off by her clear leanings. This is seen various places, including on blogs, and it seems to me that a bit more care might help promote the ultimate ends (including support of a side) intended.