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June 06, 2009

Comments

Slartibartfast, you have offered yourself as a conservative target to be outed to "even the score", but if anyone did publish your real name now, they would be acting with your permission - your invitation, in fact. They wouldn't be outing you, you would in effect have outed yourself.

Publius had not only given no such permission, he had made it explicitly clear to Mr. Whelan that he did not wish his real name to be published.

So there would be no equivalence and no evening of the score - something I hope will not be attempted in any case.

What the hey....

While not ordinarily a defender of Whelan and his ilk, on this matter I have to side with Whelan.

1. Whereas Anonymous Liberal and Publius were public or quasi-public figures operating in the political blogosphere without explicitly shouldering the risk of personal and professional blowback, Ed Whelan's name was attached to all of his posts. It makes sense, given those facts, that Whelan called Publius a "coward".

I believe this has been covered elsewhere, but Whelen's blogging and public career are operating in the same sphere, by his choice. The question of professional blowback is very real, but it's also a choice. What exactly was sacrificed by Publius's anonymity? By destroying that anonymity, the result is that other considerations independent of the argument will restrict Publius's ability (or willingness) to be sincere.

2. Ed Whelan offered substantive criticism of the record of a judicial nominee; his opponents attacked his character with cheap, grade-school level psychoanalysis, uncharitable distortions, and petty ad hominems.

Actually, this was entirely the point of the posts that got Publius in trouble. Volokh demonstrated that Whelan's posts were anything but substantive. They were written as if the author didn't know much of anything about how courts actually work. Publius and Anonymous Liberal made the point that because of Whelan's background, he quite clearly DOES know this, which means he's just acting like a hack.

3. Ed Whelan has clerked for the Supreme Court and worked for the Executive branch, so he has a firsthand view of how policy is made and an accurate understanding of what public officials consider proper. The critics attacking him, for the most part, are opinionated private citizens who post anonymously on the Internet.

This is just nonsense. Appealing to the authority and experience of an author is all well and good, but it's ignoring the rather comprehensive and (frankly) better arguments showing that Whelan saying things that (he knows) aren't true.

4. When responded to substantively, Ed Whelan engages or adapts to criticism. Note how quickly Whelan modified his claims about policy considerations at the Court after Eugene Volokh, a respected former clerk and noted law professor, critiqued them. Had the rest of Whelan's critics so limited themselves to the content and form of Whelan's posts, perhaps his rejoinders would have reciprocated.

Yeah. Have you, um, read much of Whelan's blogging? The criticisms leveled against Whelan were harsh, to be sure. His lack of substantive response is reflective of the difficulty he has in effectively pushing back. If it was untrue criticism, he'd need not respond at all. But Publius's engagement with this issue was, if anything, annoyance with the fact that Whelan isn't more honest in his arguments. Apparently, you're saying that it's not a valid criticism to accuse someone of intellectual dishonest.

As a personal matter, I fail to understand the criticism of Whelan's "outing" of Publius. What is the ethical argument in favor of Publius remaining anonymous while maintaining a public website that personally criticizes public figures in the course of discussing public affairs? Is there a moral argument in favor of trashing Ed Whelan's reputation while selfishly preserving your own? Worse, given the shoddy legal reasoning behind Publius' posts, I would think he ought to be ashamed of his attacks on Whelan. His posts most certainly do not inspire confidence that he is a high-quality law professor. One might have expected a law professor to expose holes in Whelan's reasoning, demonstrate how one ought to properly argue, and use the free Westlaw/Lexis at his disposal to back up his claims. Instead we were treated to childish sniping.

Since apparently you are new here, I'm willing to chalk up your characterizations of Publius's analyses as mere ignorance rather than stupidity. Anyone actually familiar with his work would know that he is nothing is not engaged in substantive arguments, particular with those with whom he disagrees. Whelan's continued hackery is especially infuriating to those who actually ARE interested in engaging the merits of ideas rather than using one's incredible authority to confuse and deceive those who know little (as Whelan has done.) The question of whether it's unethical to out someone who discusses public matters is a fair question, but not really that difficult to understand. There is no advantage that Publius's anonymity offers him in his debate, except the freedom to speak honestly without fear of reprisal (against him or his family). Whelan, without his authority or his platform, would just be another hack. The specter of the anonymous figure cowardly attacking the brave public face is a nice image, but I think if you're going to make an argument for why his anonymity should not be preserved (against his wishes), you'd need to at least try to demonstrate what harm comes from it.

Lastly, the notion that one not ought to punish one's critics is ridiculous. If free speech means anything, it means protecting speech we hate and curing speech with more speech. Precisely for that reason, you should expect criticizing a person to result in hateful speech directed toward you. If Publius desired to remain anonymous, he should have kept his mouth shut.

Bizarre. Funny that your last paragraph provides a pretty good rebuttal for your penultimate one. "Ought not" is not the same as "will not" and that's precisely what people are complaining about. So, Whelan's is "hate" speech now? Okay.

Publius's accusation was a harsh professional criticism of Whelan's intellectual honesty, but it wasn't in any way contentless, nor was it a random attack. It was also an accusation that Whelan was perfectly free to rebut. His response instead was to make it more difficult to Publius to argue with him for reasons unrelated to the accusation itself.

That's cowardly. And still intellectually dishonest.

Posted by: Anonymous Blogger

I guess this is intended to be ironic. But since we're not the ones arguing about the pointlessness of anonymity, this is just stupid.

I'm not sure this is working out quite the way Mr. Whelan planned it to - this post is now number six with a bullet on the google search for "Ed Whelan." Anonymous Liberal's post is at ten.

Leaving aside the ethical implications of his behavior, I'm guessing his desired outcome was not for anyone who searches for his name to see the criticisms he objects to.

I'm sorry this happened.

You are as big a coward as those trembling forest animals, Alexander Hamilton, James Madison, and John Jay. How irresponsible of them to write the Federalist papers under the pseudonym Publius.

My broader response here: http://tiedtothemast.wordpress.com/2009/06/07/scandal-ed-whelan-outs-publius-for-petty-reasons1/

And to make absolutely sure that we get our daily dose of irony, the commenter upthread who posted the (uncharacteristically for this discussion) reasoned defense of Ed Whelan's outing of publius' identity as "Anonymous Blogger", has re-posted his/her comment at Washington Monthly : only this time, actually signed!


As "John Hancock".

Wow. Ed Whelan, people who live in glass houses oughtn't throw stones. I suspect you've got secrets, and it's now open season on revealing those.

You reap what you sow.

publius, you rock.

I have read both sides and consider "anonymous bloggers who abuse their anonymity to engage in irresponsible attacks" as justifiable cause for outing.

the problem with this, which is Whelan's problem too, is that publius wasn't engaging in "irresponsible attacks".

pointing out that a person is saying ridiculous things is not irresponsible.

I have it on good information that "Big Yap" is indeed his real name and yes, his parents never liked him. That is one of the reasons why he is such a prick.

p.s. I am posting under a pseudonym for obvious professional reasons.

On the plus side at least I've now found your blog. Are you sure you and Mr Whelan aren't involved in some kind of Pro-Wrestling fake feud?

It's an Irish anonymous! That's awesome.

So sorry -- it's very frustrating, I know. But hang in there. And know that, in response to your criticism of his dickery, the worst thing he could do was... call you by your real name.

Robert:

"pseudonymous" is not "anonymous".

Obviously, whether an attack is "irresponsible" is usually debatable.

Criticizing a person's conduct, as publius criticized Whelan's, is not a function of his "superiority" by any non-circular definition, so your last sentence appears to lack any coherent meaning.

2 sentences, 3 points on which you are confused.

If publius had attempted to harm Whelan or his family personally, in a manner entirely disconnected from his chosen, public, profession, that would be another thing.

Sorry for your outing, pubilus. Whelan should be ashamed of himself. Psuedonymously or no, please keep up your excellent posting. Don't let Whelan's odious act silence you.

Well, this is a small fraction of what's due. Insignificantly small, I'd say.

I have read both sides and consider "anonymous bloggers who abuse their anonymity to engage in irresponsible attacks" as justifiable cause for outing.

As cleek said, one problem with this is that publius did not engage in "irresponsible attacks", only well-supported justified attacks.

Another problem with this is that it's difficult to see how an outing would be justified even for truly irresponsible or unjustified attacks from an anonymous or pseudononymous blogger - on the internet all you have is the strength of your argument. If publius' argument was weak, Whelan could easily have rebutted it (or ignored it).

For example, this is why we can ignore the truly laughable attacks of the "Motos" and "Yaps" in this thread. We pay slightly more attention to the more detailed arguments from "Anonymous Blogger", but find they fall apart on closer examination. That's how it works. On the internet not only does no one know you're a dog, it doesn't matter, as long as you make good arguments.

An anonymous blogger just isn't even in a position to make "irresponsible attacks". Not ones that stick. Whelan's problem isn't that the attacks came from an anonymous source. It's that the attacks were accurate, and hit a nerve.

In fact, the only ones in a position to give irresponsible attacks the imprimatur of authority they need to stick are political hacks like Ed Whelan. The ones who trade on the authority of their education and professional experience in order to engage in irresponsible, substance-free partisan sophistry.

The cognitive dissonance apparently makes them rather thin-skinned and petty.

came from an anonymous source

Pseudonymous source, I should say, though Whelan doesn't appear to understand the difference.

Kind of interesting, seeing who is lining up behind Whelan:

On the substantive debate between Blevins and Whelan, I think Whelan easily has the upper hand, but readers can decide this for themselves. On the propriety of hiding behind a pseudonym while sniping at a critic who is out in the open, I see no redeeming argument. I hope the South Texas tenure committee is watching and taking note.

Says, I'm guessing, the guy who already has his tenure situation all squared away.

I always expected to find out who "publius" was a decade from now during a SCOTUS nomination launch or on the book jacket of some epochal work on the Constitution.

As someone who used to comment a lot at LF but who still reads regularly, let me add my voice to all those expressing sympathy for publius and anger at the cretinous Ed. Keep up the great blogging, and don't let the bastards get you down.

This won't help, but...

Although I'm best described as a conservative or libertarian, I've read your blog off and on for years. I'm not sure I'd heard Whelan's name before today.

In the world of the interwebs, Whelan was far more anonymous to me than you were, even though I knew you only by your pseudonym.

You, I'll keep reading. Whelan I've already forgotten. And here's to hoping that's as far as the repercussions go.

Just a word to the wise: if you post comments of a liberal bent at ObiWi, pseudonymously, you stand a good chance of being outted.

"Leaving aside the ethical implications of his behavior, I'm guessing his desired outcome was not for anyone who searches for his name to see the criticisms he objects to."

But that's exactly what always happens to anyone who "outs" someone. Ignorance of how the blogosphere works is its own punishment.

Blevins, since all you do is promote the current party line, what do you care who knows who you are? It would be surprising for a person like you to express anything else. As Mencius Moldbug (who blogs anonymously for good reason, as I do) says, it allows you to pretend you're part of a revolutionary movement, rather than the Komsomol.

http://www.stcl.edu/faculty-dir/John_Blevins.html

The dude quotes Woody Allen, of all degenerates. You sir, are a massive tool.

I'm toying with not banning BigYap, as punishment. Thoughts, anyone?

note to all bloggers who are just starting out and are considering using a pseudonym: please consult Jim to see if your reasons for wanting to use a pseud are good enough.

Slartibartfast, who would you be punishing by not banning BigYap?

BigYap

since all you do is promote the current party line, what do you care who knows who you are? It would be surprising for a person like you to express anything else. As Mencius Moldbug (who blogs anonymously for good reason, as I do) says, it allows you to pretend you're part of a revolutionary movement, rather than the Komsomol.

Lots of trolls out today. But just because it's worth stating again, I note that this kind of criticism only outs these "critics" as people who haven't read Publius's work at all. The last thing I can imagine someone reasonably saying about him is "totes the party line." He's the guy I go to when I want to hear the rational argument for why the party line is wrong.

But ignorance concerning what they're writing about hasn't stopped people like Jim and BigYap from enlightening us with their opinions.


I am much closer politically to Mr. Whelan than I am to Mr. Blevins. That said, it is fantastically petty and lame for Whelan to "out" Blevins. Good grief, it's as though he (Whelan) is some petulant teenager with hurt feelings. Where are the comments on the "courageous" Mr. Whelan's blog, by the way?

Warning: Debra Bowen is "outing" all you California political campaign contributors. Be advised.

http://www.sos.ca.gov/

One hopes Whelan and BY get all up in her grill for this blatant revelation of...er...public records. For shame.

It's worth mentioning that this post is currently the top post at Memeorandum, and the next several dozen posts are all about Whelan's act.

Way to make yourself famous, as I said, Whelan.

Just to keep score, the number of Ed Whelan-defending, scourges of pseudonymous-blogging-as-cowardice willing to post under their complete, real names in this thread remains....zero. What an enormous collection of pathetic bullies.

Re: Whelan's response (linked to by Slarti above):

1) Whelan whines that "others seem to assume that I owed some sort of obligation to Blevins not to expose his pseudonymous blogging." Whelan didn't expose publius's pseudonymous blogging. Everyone knows (I think) that "publius" is a pseudonym. You don't need to know his actual name to know that. And if you're going to draw a whole serious of fantastic and bizarre conclusions on the basis of the mere fact of his pseudonymy (as Special Ed II and his minions appear committed to doing), his identity is irrelevant.

2) Anybody else tired of McCarthyite threats to bloggers' professional lives posing as statements about the "consequences" of their blogging? Luckily, these threats--at least in the case of bloggers like publius--are truly empty. But if Whelan thinks that repeatedly writing the equivalent of "nice blog you have here....shame if something were to happen to it" is a way to either win an argument or impress the world with his ethics or bravery, he's an even dimmer bulb than his attacks on Koh and Sotomayor suggest that he is.

3) Whelan and his defenders have still not dealt with the substance of publius and Anonymous Liberal's response to Whelan's laughable criticism of Sotomayor. Instead Whelan and his flying monkeys have been too busy feverishly patting themselves on the back for pretending to accept Eugene Volokh's criticism of them. It turns out, even Volokh isn't satified:

UPDATE: Ed Whelan e-mailed me to note that he has revised his post in light of this one....I much appreciate the revision, which does make Whelan's point narrower. But I think that on balance the criticism still isn't quite apt.

So Whelan is pretending that he's satisfied one critic (Volokh), which he's then using as evidence to justify his "outing" of a second critic whose criticism he refuses to even pretend to deal with (publius), while, as far as I can tell, largely ignoring a third critic (Anonymous Liberal).

The Ethics and Public Policy Center must be so proud!

You're about to find out who your real friends are. If you lose some, take it from me, just let it go. Take it as a lesson as "That jerk wasn't worth my time anyway."

Good luck.

Commenting here was broken for a while. I resorted to posting on my own blog.

Thanks for the explanation, Slart. I now see what you mean.

I continue to be baffled by the number of people referring to "anonymous bloggers" -- especially while using a pseudonym (LOLZ). *No-one* here is blogging anonymously, we are mostly using *pseudonyms*, which is (a) completely different and (b) part of a very, very old tradition in both politics and fiction.

Here's what an actual experiment in anonymous blogging looked like [details redacted]: a group of several hundred people with a common interest formed a community in which *every member* had admin privileges. Both posts and comments were unsigned and IP addresses were unlogged, so there was no way to connect comments and posts to each other.

I was told that the advantage was:

Because it is detached from our named selves, it allows for fluidity of identity, I think. I can be the person leaving an idiotic comment and the person chiming in against them, and then also someone taking up that comment and rehashing it further in the discussion, all while still supporting an environment where everyone is instantly comfortable with each other.
In the event, as might have been predicted, one member of the community got angry and used hir admin privileges to delete *everything*, and there was much unhappiness. What was truly surprising was that this took *3 years* (a generation in Internet years), so it probably qualified as a remarkably successful experiment.

The point of this story is to make it perfectly clear that we in the political blogosphere are *not* talking about anonymous blogging.

I will assume that anyone who persistently uses the term "anonymous" to describe pseudonymity is part of the problem. That is, people like *you* are the reason fiction and politics have a long tradition of pseuds, of which the nom de net is just the most recent version.

You are a law professor. Stop being a crybaby and grow up.

I'm toying with not banning BigYap, as punishment. Thoughts, anyone?

Outting him is much more your style.

To publius: I am not a regular commenter here and only learned of this because I saw it on Althouse. I suspect I am rather more conservative (right of center, if only slightly) than you are, but I want to add my voice to those who are condemning Ed Whelan and encouraging you. Keep blogging, dude.

As C.S. said, pseudonyms are a kind of compact. Pseudonyms can function as a kind of tool, as Green Eagle pointed out, to allow us to focus on the merits (or lack thereof) of arguments.

I echo John Spragge that this is a line that must never be crossed and concede that paulk has an argument for calling it “internet terrorism.”

I too am a teacher and thus am careful about what my public persona puts out. I want my students to think for themselves. I also want to avoid backlash from some of my colleagues.

Lastly, may I say that it is indeed a sad moment when, just as 21st century America has discovered the ability to have the kind of back-and-forth arguments that the Founders did, we are willing to ruin it by selfishness and cowardice.

Pseudonymically yours,

Frodo Potter

It really enrages me whenever a pseudonomous blogger is "outed". Those who engage in such behaviour are cowardly and vindictive. Not ethical in my world.

I personally appreciate that the nom de plume means that the writing & arguments can be judged on their own merits, without the filter of personality. The good will develop a following. The mediocre will fade away. Your pieces pass the test, and I look forward to more legal and political analysis from "Publius".

Outting him is much more your style

We could have an open thread where JadeGold could gripe about what a big meanie I am. That would be probably better than taking a dump on publius' thread, I bet.

Dick.

It's the fact that Whelan is associated at all with the teaching/promotion of ethics that's more than a little upsetting. He's clearly a man of very little character.

you should file a civil suit against him,

Join with Valerie Plame to make it a class action against right-wing bullies.

Yah, and your speculation, Ed, would be a little less laughable if such a thing had ever happened, which it hasn't, because . . . wait for it . . . most people respect the pseudonymous choice, even of conservative bloggers. And their sock puppets.

Riiiiiight.

http://www.blogherald.com/2009/03/28/the-outing-of-a-blogger-social-transparency-or-violation/

http://www.rawstory.com/news/2006/Gannon_comes_out_Former_escort_conservative_0506.html

I blog pseudonymously. I know that it is a thin veneer and is only as good as my ability to keep my identity secret. That's simply how it is. I also make sure to not post anything that I would not attach my real name to.

You have a right to blog under a pen name. You do not have the right to prevent someone else who finds out your real name from revealing it. Grow up, and do a better job next time.

Everyone, whenever Ed or his sockpuppet Mr. Moto shows up, ask him this:

Dear Mr. Moto/Ed Whelan:

How come the only bloggers that haven't been outed at Obsidian Wings are the two conservative ones?

Do this until he deigns to answer or leaves.

(By the way: I'm not advocating that the righties drop their cloaks. I am advocating that Ed Whelan grow a brain, a conscience, and a spine.)

Whereas Anonymous Liberal and Publius were public or quasi-public figures operating in the political blogosphere without explicitly shouldering the risk of personal and professional blowback, Ed Whelan's name was attached to all of his posts.

Whelan works for a right-wing think tank. When he blogs right-wing opinions, he's not risking any blowback, he's advertising the "Ed Whalen, professional right-wing opinionator" brand. Your statement is the equivalent of congratulating a baseball player for wearing his name on his jersey.

I have read both sides and consider "anonymous bloggers who abuse their anonymity to engage in irresponsible attacks" as justifiable cause for outing.

Why? Seriously, why is the anonymity the problem? If a post is lucid and readable, if factual assertions are supported by proper citation, and opinion clearly noted as opinion, why does the (relative) anonymity of the author come into it at all?

I would also like to reiterate what was said upthread about the difference between Anonymity and Pseudonymity. They are different things. Someone posting under a persistent pseudonym is held accountable for their words in pretty much the same way as someone posting under their real name.

A persistent pseud has a history to it, that can be examined by readers, and that carries social capital. Everything Publius posts carries with it the history the reader has with reading Publius' previous words, the same as if he were posting all along under his real name. The effect of pseudonymity in online dialogue is to put the emphasis not on the person, but on the writing.

Attacking a blogger for posting pseudonymously achieves two things:
1. It inverts the argument from authority, implying that the blogger does not, in fact, have the authority to make the claims they have, invalidating their argument. (This doesn't actually work on Publius, who only gains authority from his status as a law professor, but it has certainly worked on other bloggers in the past, such as Mudflats and Coffeeandink.) This is an inherently conservative/authoritarian attack: if you don't already have a position of privilege, I don't have to listen to you.

2. It silences future critics, particularly critics who operate from a position of less privilege. Women writing on gender issues, POC writing on race, low-income bloggers writing on poverty--all of these people risk a lot more from being outed than Publius does (Publius, I suggest, has not received death threats, whereas we all know the story of Kathy Sierra, I hope). And knowing that the National Review supports the outing of pseudonymous bloggers, those less-privileged critics will have their speech chilled as a consequence.

You have a right to blog under a pen name. You do not have the right to prevent someone else who finds out your real name from revealing it. Grow up, and do a better job next time.

Strawman Alert: no one is saying that anyone has a right (or a way) to prevent Whelan from making an ass out of himself by outing people who criticize him.

However, once he's done it, everyone is fully justified in pointing out what a petulant child he is, and how much weaker it makes his arguments look (such as they are).

Pretty classless move -- an unquestionable breach of blogging etiquette.

That said, I generally share Whelan's concerns about Sotomayor. The problem isn't so much the "consider" policy as it is the "make" policy.

Of course policies are considered by courts. The whole idea is to gauge legitimately adopted policies against the constraints of law. Some policies pass muster, others don't.

My problem is when judges go a step beyond that and get into the policy-making business. That is something that nobody should welcome.

What if the courts were filled with judges like Roy Moore? Surely everybody can see the problem inherent with granting judges that much power -- power they were never intended to have.

So -- consider away. Strike down when the constitution says so. But leave policymaking to the policymakers who are elected and accountable to voters.


I may not agree with you being outed, but I find your reasons for being anonymous less than compelling.

One should never be ashamed of what one believes. If you really believed in what you wrote then there is no reasons to hide it from family or friends or business, even if they disagree with you.

There are good reasons for being anonymous, but your reasons are not.

Stop whining and man up. Before, you did not have the courage to blog under your own name. Now, you have a chance to show that you have some guts.

You're entitled to your opinion. But it is, after all, his identity and his choice.

And, to that end, it doesn't really matter what his reasons were or whether you find them compelling.

There's no defending what Mr. Whelan did, IMO. And I'm somebody who's far closer to him on the underlying issue than I am to Mr. Blevins.

I think our judicial branch, in general, has assumed far more power for itself than it ever was intended to have. And I think Judge Sotomayor's comments get right to the heart of that. Whelan's criticisms of her were hardly demagogic, as Blevins charged. They were utterly cogent, in context, and fair.

And I don't blame Whelan for objecting to the way Blevins wrote about him. If anybody was being demagogic, it was Blevins as publius.

Still, that doesn't give Whelan the right to strip Blevins' anonymity.

"There are good reasons for being anonymous, but your reasons are not."

And what's the reason you haven't given your full name, address, and telephone number here, Kathleen?

Gene, what's your address and phone number? Man up and show some guts.

Hi, ya Gary:

I live in Stafford, Virginia. Based on that fact, everything else should be easy enough to figure out.

So, let me repeat myself:

"Stop whining and man up. Before, you did not have the courage to blog under your own name. Now, you have a chance to show that you have some guts."

One fundamental flaw I found in your post above is this; courts DO, of course CONSIDER policy. They frequently must in performing statutory interpretation.

That is MATERIALLY different than MAKING policy, as Sotomayor stated was a legitimate role of appellate courts.

Also, as a member of the bar in your same jurisdiction, and knowing the law school in which you teach, I doubt very seriously that you will meet any repercussions for your blogging...unless, of course, they derive from the market choice by potential students who chose not to take a course you instruct.

That is MATERIALLY different than MAKING policy, as Sotomayor stated was a legitimate role of appellate courts.

Why? A policy is made with either approach.

What cofax said. The persistent equation of pseuds with anonymity seems to me to be part of the same dynamic: only those privileged with power and security should be allowed to speak, anyone who is in a risky or precarious situation should shut up. If they don't they're just rabble, anonymous, the faceless mob.

I'm conservative, but this is an infantile, indefensible action on Whelan's part.

Blevins has made some tough observations on Whelan's writings - ok. So *answer* them. Don't resort to this crap. Because, once one peers past Ed's jesuitical bullshit, it's nothing more than a straightforward attempt to intimidate Blevin and shut down discourse. It's the blogging equivalent of a SLAAP suit, and Whelan should be man enough to admit that and apologize

That is MATERIALLY different than MAKING policy, as Sotomayor stated was a legitimate role of appellate courts.

This is really silly. When an appellate judge chooses among multiple plausible outcomes (as is almost always the case), she makes policy, period. And this is true whether a judge considers policy consequences or not. (This doesn't mean that a judge is acting lawlessly.) This kind of argument is just sophomoric.

Sorry, publius, that sucks. I've enjoyed your stuff since the Legal Fiction days, and this was totally uncalled for. Keep using publius, just like others kept using their posting name after their real name was revealed.

And to those who are defending this behavior while also not posting under your complete real name, you have got to be kidding me. Seriously, do you have any idea how absurd you sound, demanding that publius have his real name revealed while refusing to subject yourself to the same standard?

If you demand complete real names, use your own as well. If you post under a pseudonym yourself, then respect the right of others to make the same choice.

I'm really trying to fathom this...so far I see comments from at least three different people expressing disdain and scorn at the notion of pseudonymous blogging. And all three of these people are doing so under pseudonyms.

Glad to see hypocrisy is alive and well. But really, don't you think it's just a bit too ridiculous to be worthwhile when you use a pseudonym to criticize the usage of pseudonyms? Or are you people so self-absorbed that you don't realize that such an argument is manifestly self-defeating and, indeed, makes you look idiotic?

I'm kind of astonished at the way the issue of privilege is being elided in this conversation. That Publius could have posted openly under his own name, without much fear of reprisal, is a privilege of his status as a white male professor of law.

Forbidding pseudonymity means that other people with just as much value to add to the public conversation cannot contribute, because they are at risk of immediate personal or even physical harm. Or if they choose to take that risk and post anyway, they would not gain an audience because their real life circumstances don't give them the veneer of authority that being a former clerk to SCOTUS does.

It's all about privilege, and about silencing the voices of those who dare to challenge privilege.

(Also, hey, Doctor Science! Do I know you under another pseudonym beginning with M?)

Gary Farber is right!

Also, I changed my fake name up-thread to BigYap's Shrink only because it made the snark funnier(I hope). No secret conspiracy. My real fake name is:

gocart mozart

You're not a "big meanie," Slarts; just an unethical one.

Yeah, cofax, it's me. *waves* And yeah, in that other part of the 'net we've seen this particular go-round *so many times* -- though I must say, I find the number of pseuds decrying pseudonymity here especially hilarious.

I think it might be a function of the one-to-many structure of the political blogosphere, instead of the many-to-many structure found some other places. The fact that people can persist in calling pseuds "anonymous" may reflect that on most blogs the OP is *highly* privileged compared to the commenters.

You'd think Whelan would have a little tougher hide after doing bad law for the worst DOJ in history. I mean if you're the Washington Senators of lawyers, you get used to being a loser, a bottom feeding war criminal, don't you Ed? Prick.

"Lastly, the notion that one not ought to punish one's critics is ridiculous."

I think Stewie Griffin has invaded ObWi comments.

Seriously, this falls under "allow me to defend Ed Whelan's d*ckishness by being a d*ck".

Keep it coming folks, we love to see your true colors.

My advice? Continue as Publius. It's your brand, at this point. Just don't be afraid to own Publius and don't let Publius own you.

Whelan is already owned. Or 'pwned,' as the netizens say.

What a bunch of whiny little bitches.

bobbyp:

If you read the opinions quoted in my original post and respond to my query, then you might just understand the point. Gore v. Bush had more ratio decendi than Roe, Gideon and Miranda combined.

By the way, you should also try to spell former Supreme Court Chief Justices' names correctly if you are honestly trying to debate constitutional jurisprudence.

His name was spelled Rehnquist.

no amount of trashiness surprises me at NRO these days.

the big shame is that Whelan was winning this argument in a big way. Sotomayor is a crummy nominee for all the reason he has brought up. When they start in with that "he doesnt really think like this, he's just pretending to because thats his job for those scheming neocons" thats when you know you have a lib licked. Then he snatches defeat from the jaws of victory with this stupid personal attack on publius. Oh well you got yourself owned here Ed, take your licks and keep fighting the good fight, just do it in the right way in the future.

Whelan is a coward and a liar, and his parsing of Volokh's response to make it seem as if Whelan wasn't completely pwned, is exactly the quality of character that makes many laypersons despise lawyers en masse. I also find it ironic that Whelan talks about publius "hiding behind two pseudonyms," while his own forum allows no opportunity for feedback or discussion.

Oh, and welcome to Texas. Don't worry, not everyone here is a dick...

Slarti :Well, this is a small fraction of what's due. Insignificantly small, I'd say.

Whu? Your link goes to Whelan being ever more obstreperous and stoopid. He is indeed insignificantly small, in my universe, but I'm not sure what you mean.

get a life... you want to smear people on the internet? you can't and should not do it pseudonyouly... and stop crying like somebody took your precious toy from you... why shouldn't employers and family know about your dark side? they should know.... get a life....

get a life... you want to smear people on the internet? you can't and should not do it pseudonyouly...

Yos

BWAH HAH HAH HAH HAHAHHAHAHAHAHAHAH!!!!!

Nobody has a right to have an inviolate blogging pseudonym. You post your thoughts on the net, you take your chances. Whether Whelan's conduct was gentlemanly is another question.

Scott Lemieux wrote: "This is really silly. When an appellate judge chooses among multiple plausible outcomes (as is almost always the case), she makes policy, period."

This is ridiculous. Looking at the law, interpreting it, and applying it as interpreted in the context of a particular case is not making policy -- even when it comes to serve as precedent for similar future cases.

Naturally, the courts can say that some statute violates the Constitution, and thus invalidate it. They do that all the time. But doing so is not "making" policy at all.

Consider an example: the line-item veto. Congress passed a law giving the president some additional powers. The courts tossed it out as violating the powers outlined in Arts I & II.

That is not "making" policy. The result of this ruling is a return to the powers and checks already spelled out in Arts I & II and as previously interpreted by pre-existing caselaw.

But interpreting and understanding law is not making law or policy -- anymore than an umpire at a baseball game applying the rules of the game as he understands them to some play is a rewriting of those rules.

There's nothing wrong with rewriting rules, of course. But there's a right way and a wrong way to go about doing that. Having an umpire do it in the middle of the game, based on whatever he thinks best for whatever reason, is the wrong way.

This is ridiculous. Looking at the law, interpreting it, and applying it as interpreted in the context of a particular case is not making policy -- even when it comes to serve as precedent for similar future cases.

Actually, I think that is ridiculous. Functionally, the resultant judgements act as policy, no matter how they are arrived at. The underlying philosophy seems to be that there is one right end point; that there is only one set of context to take or that there can be no underlying philosophy to guide that selection of context seems to be out of touch with reality.

The umpire analogy really is not that applicable to how law is determined; if things were that unambiguous, it wouldn't have gotten up to the Supreme Court level anyway.

That is not "making" policy.

Yes, it is. When the Court decided Clinton v. NY, it made policy. This doesn't mean the Court acted lawlessly. But it did exercise its discretion to make a policy choice that was a plausible interpretation of the relevant legal materials but was certainly not compelled by them.

Whu? Your link goes to Whelan being ever more obstreperous and stoopid

There's a minor apology hidden in there somewhere. Or there was. As I said: not nearly enough.

Mr. Blevins,

You may feel you have been "outed" in some McCarthyite fashion, but what is at least equally McCarthyite, Orwellian or even Kafkaesque is to be maligned by anonymous accusers you cannot face.

Naturally our Constitutional right to face witnesses against us is limited to criminal prosecutions, but I believe that if you criticize specific people, you have an analogous obligation to use your own name, and it is cowardly as well as unfair not to do so. This is true regardless of the merits of your criticism -- after all, almost everyone thinks his own arguments have merit.

Obviously you do not have to agree with me on this, but it is absurd that you assume that someone could not legitimately believe these things and thus could not legitimately act to out you. I have no particular dog in your fight, but I post criticisms under my own name, facing certain risks like anyone else, or I hold my pen; in either case I show by my own actions that I actually hold to this code whose existence you deny.

but what is at least equally McCarthyite, Orwellian or even Kafkaesque is to be maligned by anonymous accusers you cannot face.

Bullcrap.

On the Internet, NO ONE HAS FACES.

You stand and fall based solely on your words and arguments.
That's it.

As well, the minute you step away from the arguments, you explicitly accept the truth of you opponent's words and say you cannot compete.

It's nice to see some real net vets chime in. Go Doctor Science.

So when will Ed Whelan post his home phone number and social security number online? Or is he too much of a cowardly idiot.

Robert, what kind of points will you be raising once you start adding your last name and home address to your posts?

You people are being pretty silly acting like you have an absolute right to anonymity on the net. You don't. Granted, we all like our anonymity, but no one is legally bound to respect it. It's a chance you take, especially when you have a blog and you start attacking other people. Some people might compare you in that scenario to an anonymous letter writer to a newspaper. Newspapers do ask for your name and address, don't they?

To be sure, Whelan's having "exposed" Blevins has done nothing to advance Whelan's side of the argument.

All you need to know about "retire05" - he's a Swiftboater.

http://www.swiftvets.com/phpBB2/search.php?search_author=retire05&sid=c80354bdc37b23ab4f2fbf0e0101c204

I'd publish his real name and address, but that would be wrong.

Stay publius.

If you don't change the byline and your readers have the common courtesy to still call you by your pseudonym, in a few weeks or months, the little tidbit about your identity will fade into the net and never be found by the average person, and you'll go back to being as anonymous as you were before.

The genie might already be out of the bottle in some ways, but you stand a good chance that anyone who doesn't read a half dozen blogs religiously won't see it now and will never stumble upon it next year when they go to Google there new professor, or when the tenure review board does the same for their latest candidate.

"the minute you step away from the arguments, you explicitly [sic] accept the truth of you[r] opponent's words and say you cannot compete."

Agreed. (Except that the acceptance is implicit, not explicit.) But one way of stepping away from an argument is by refusing to own up to it. Another is to emphasize the personalities of your opponents over their arguments. Blevins was doing both before Whelan responded.

The "original" Publius (Hamilton, Jay and Madison), in contrast, was himself responding to pseudonymous articles (by "Cato" and "Brutus"); and this Publius, unlike the modern one, wrote exclusively about the substance of issues, with very few or (as I recall) no instances of attacking an opponent by name.

How was publius 'refusing to own up to [his argument]'? What personality trait of Whelan did he expose? How is revealing private information (as well as idiotically accusing Publius of using Edward's name as another pseudonym) a 'response'? I mean, you could say 'he responded to my point by calling me a goat f**ker, but you seem to think that behaving like an ass is a valued response.

Jeeze. Take a weekend off from the intertubes and look what happens…

Reprehensible. What a vile and petty thing to do. Sorry publius.

Res ipso loquitur. Whelan is a true WATB, and he made a feeble attempt to "get" you by revealing your identity. He is really six years old, and his mommy was mean to him this morning. I feel sympathy for his immature reaction, not anger.

Dear Publius, I sympathize with you on your preference to keep your real name secret or separate from your bloggings under the "Publius" name. A gentleman would have obeyed your wishes once he had found out about your preferences. Iow, Ed Whelan behaved like a cad.

For me, personally, it doesn't matter if I use my real name or a pseudonym. I only have two screennames, and one of them incorporates my real name. As you can see below.

Sincerely,

As a STCL student who took his class.....

I can honestly say that I appreciate that he keeps things non-political in the classroom. I would have been uncomfortable to walk into my first class with my first professor knowing only what ratemyprofessor.com and this blog would have told me.

By the way, this guy is one of the best LRW profs at the school. Everyone I know that took him (especially for LRW I) thought he was tough, but fair and freaking sweet (which is a hard thing to accomplish). His tips greatly helped me navigate my first semester and come out on top.

liberals just dont want to hear anyone who disagrees with thier wacko ideas

I was going to comment with exactly what Zuzu said. I don't care if someone post anonymously. It is about the post, not the person. But a blog without comments, that is cowardice.

Well, that Ed Whelan is clearly an unmitigated shit - a cowardly bottom-feeder who can't match you in debate or discourse, so feels obliged to revenge himself by trying to attack you in 'real life.'

Totally pathetic, inexcusable action on his part. Anybody who has a life 'en blog' should recognize and respect that anonymous bloggers are anonymous for a reason - and CHOOSE to be that way.

His actions were the last recourse of a despicable coward and stain everything he's ever written with the unmistakable aroma of failure. Shame on him

To liberal japonicus:

1) The idiom to “own up to” something is to confess to it, to attach your name to it.

2) By “emphasize the personalities of your opponents over their arguments” I meant attacking persons, not their arguments. But even by your narrower reading (“personality traits”) publius did this recently when he attacked Whelan as dishonest for not actually believing his own arguments as in:

“And don't feel sorry for Ed. He knows all this -- he's a smart guy with outstanding legal credentials. He just enjoys playing the role of know-nothing demagogue. Anonymous Liberal pretty much captured it:
This is Whelan's role in the conservative world, his niche. He's the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee. He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he's doing. It's willful. He's essentially a legal hitman, someone who provides the "expert" opinion that the right wing echo chamber then uses as the basis of its attack campaign.”

Writing (and/or approvingly quoting) that your opponent’s claims are so specious that even he must not believe them is of course an attack on your opponent’s honesty.

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