The Education of Ed Whelan

by publius

One of the most annoying aspects of the larger Sotomayor debate is this idea that courts don't make policy.  Of course, people may disagree in good faith about whether text and precedent answer a particular question in a given case.  But everyone who has spent a week in law school knows that courts do policy.  It's inherent to the process -- and it's often inherent to the very text and doctrine at issue.

Anyway, Ed Whelan has a good chuckle at the very notion that Supreme Court Justices should be pondering policy.  Here's an excerpt (and note the Update - we'll come back to that):

So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about … policy implications.”  [Update:  Eugene Volokh offers a characteristically thoughtful critique of the original version of this post.  In response, I have tweaked my language in this paragraph; the italicized words are new.]

Volokh actually decimates Whelan's argument.  For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed.  With detailed and thoughtful explanations, Volokh obliterates the idea that judges don't do policy.  It's the definitive post on the subject.

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.

Yep.

Comments

[stonetools]

Any lawyer or student of the law who doesn't understand that appellate judges must at least consider the policy implications of their decisions-well, the kindest way to put it is that they don't know what they talking about.
This is for hilzoy.
One commenter in the Volokh thread fulminated:

Given the pervasiveness of racist assumptions underlying modern liberal political correctness, perhaps this is the best Obama can do if he has to get a lib on the court. Of course, that shouldn't stop Senators from asking her why she has to continuously attack white men, or whether her membership in The Race (La Raza) indicates a bias against whites, or hatrid for non-Latino peoples, and whether she supports the concept of Azlatan or other radical racial projects once favored The Race when she was a member (which they now are trying to step away from).

to which another replied:

In addition, that commenter was suggesting that Judge Sotomayor supported "Azlatan" [sic], i.e., a supposed proposed "reconquista" of former Mexican territories, which is a rather strange thing for a judge of Puerto Rican ancestry to be interested in.

I tell you , I thought of earlier post by hilzoy:

http://tinyurl.com/r2cfpb

and I had a pretty good laugh.You can't make this stuff up...

[Pithlord]

The odd thing is that Sotomayor, by all accounts, is not a particularly policy-oriented judge (I know, policy can't be avoided completely, yadda, yadda, but you know what I mean).

[Pithlord]

In fact, that's the point of the joke. Sotomayor identifies with the trial judge who just shoots the duck.

[Bernard Yomtov]

News flash: Stupid item at NRO.

[Slartibartfast]

He's the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee.

I had absolutely no idea. Maybe I've fallen off the grapevine completely.

[bobbyp]

Conservatives take note: High Court decides (1857) slaves are still chattel property in states where slavery is outlawed. Is this policy? Was precedent ahered to? On which legislative action was this decision reached? Square this decision with the so-called doctrine of "original intent". Demonstrate how "states rights" and "due process" interacted vs. this decision. Use this decision to defend conservative "principles" as set forth by Eddie Burke.

Your mission, should you decide to undertake it, is to unravel the bedrock incoherence of the federalist society current constitutional paradigm.

[Harald Korneliussen]

But once you admit that SCJs make policy, then you come to the conclusion that there's a huge gap in political power in most modern democracies - especially the US, where SCJs are appointed for life.

Some people are vastly more empowered to decide policy than others, without even the small amount of accountability that comes from being elected/facing reelection. That is political inequality, and it's plainly not a good thing, even if the empowered people currently agree with you on the issues you care about.

[Gary Farber]

"I tell you , I thought of earlier post by hilzoy"

Perhaps you could give an actual link, rather than a tinyurl no one sensible would use? (Tinyurls tend to go to viruses and porn, as well as being subject to linkrot, and are simply opaque.)

Thanks.

[Davis X. Machina]

Some comment boxes break long url's, or won't allow a href tags at all. Tinyurl is sometimes the least bad option.

[El Cid]

The description by Anonymous Liberal of Ed Whelan's role applies to the entirety of the modern conservative movement of the last 40 years. It's not all they do, but they all do it.

[mythago]

Harald, is that an argument against Marbury v. Madison?

Whelan's not just playing know-nothing. He's displaying the same disgust as a butler who finds out that a tradesman has come in the front door and has put his feet up on the good dining-room table.

The 'five-part test' for shooting the duck is actually pretty funny.

[Harald Korneliussen]

mythago: No. I think judges do indeed make policy (not just "liberal" ones) and that is a problem.

One thing is when they make temporary policy, which remains unless and until politicans decide to clarify that the law had a different intent. That may be a necessary evil to keep things running smoothly. But when they make super-policy by interpreting virtually un-amendable constitutions and international treaties, they are exercising extreme political power. Even if they happen to do it wisely, this is a problem because of the sheer political inequality.

It's not one kind of judges that is the problem. Judges are a problem.

[Phil]

Tinyurls tend to go to viruses and porn

This is, in my experience, not true; and there's nothing per se wrong with URL shorteners, particularly for Twitter and other services that have character limits. I prefer bit.ly, which is what I use at work, but chacon ses gouts.

[Gary Farber]

"Tinyurl is sometimes the least bad option."

Yes, if you want to get a virus, be rickrolled, see horrific pictures, and have your link suppressed by many large services, as well as subject to quick linkrot. Anyone who clicks on one is either taking a major risk, or likes goatse. Anyone who uses one is guaranteeing a bunch of people won't click on their link.

[Ed Whelan]

In this blog post, I expose who “publius” is and respond to his misplaced critique. In case the hyperlink doesn’t transmit, here’s the URL of my post: http://bench.nationalreview.com/post/?q=OTlmMzkyMzA1NDVkYjdiMjgyMDlhYWE0NzRkZWY1ODc=

[Dave C (the uppity newcomer)]

HTML Tags are not that hard to use.

[Gary Farber]

"In this blog post, I expose who 'publius' is"

Gee, I never heard of you before, and would have forgotten your name by later this week, but now you're going to stick in my memory for years as a notorious schmuck.

Well-done.

[russell]

From Whelan's rebuttal, linked to above:

"Gee, I think it’s the guy hiding behind the two pseudonyms who evidently has reason to be embarrassed."

No, assuming Ed Whelan is the guy actually posting here, actually it's you.

To be honest, I didn't know a thing about you before reading this thread. Congratulations, you've established yourself as a 100% solid jerk.

Please see Bernard Yomtov's comment upthread.

[russell]

And no, Gary and I are not the same person.

[publius]

thanks peeps - I'll respond later. These things are probably not best responded to immediately.

[someotherdude]

Dang, it appears, the natives are getting restless.

Hope all is well at the National Review's Corner.

Having no foundation is a pain in the butt.

It can lead to desperate shenanigans.

[cleek]

holy crap. what a spiteful little baby.

[Gary Farber]

Since you doubtless haven't figured this out, Mr. Whelan, outing a pseudonymous blogger for no better reason than that you don't like what the blogger is saying has long been established as the act of someone who has no better argument.

It's a revealingly pathetic act. It's the act of an angry child.

People who do it brand themselves.

And, yes, I have always posted under my own name.

[mythago]

Harald, then yes, you are arguing against Marbury v Madison. Judges will make policy even when they are attempting to do nothing more than neutrally interpret the letter of the law. That's because by judging, there is a particular outcome, and policy flows from that.

Actual judicial activism is when a judge departs from existing law because "well, I think this is what the law should say, even though it doesn't". If you think that conservatives naturally abhor judicial activism, ask where they were when Rehnquist was spewing opinions like his Texas v Johnson dissent (shorter version: Screw the First Amendment, that's different!).

[mr. moto]

Generally, the anonymity of a blogger ought to be respected. However, the identity of a blogger who hides behind anonymity to go after others is fair game.

Fair is fair.

[Warren Terra]

The first line of the [expletive] Whelan's post is:

One bane of the Internet is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks. One such blogger who has been biting at my ankles in recent months is the fellow who calls himself “publius” at the Obsidian Wings blog.

What part of "pseudonymous" does this [longer expletive] not understand? I know we've had this debate before, when someone amazingly accomplishes the rigorous detective work required to pierce the veil of Hilzoy's pseudonymity, but if someone is using a pseudonym consistently, and is not using that identity to engage in fraudulent, harassing, or an any other way unethical behavior, what actual value is there in exposing their real name? What point is there at all, other than bullying?

The rest of the post is also amusing - especially the misconception about "Edward Winkleman". I've traded emails with Publius once, and while I was initially a bit confused by the name it took me considerably less than five minutes with Google to figure out who Mr. Winkleman was, what his connection with Obsidian Wings was, and to surmise why Publius might be using an email account with that name for Obsidian Wings's business - a surmise easily confirmed by clicking the "About me" link on every page of Obsidian Wings, which probably should have been my first port of call.

This nimrod was a clerk on the Ninth circuit and for Scalia, Senior Vice President and Counselor to the General Counsel for Verizon, and " Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice"? Well, at least given the purpose and quality of the opinions that came out the Bush OLC and the Bush DOJ's practice of hiring intellectually sub-par people on their bona fides as partisan pit-bulls, the last part is believable.

[cleek]

However, the identity of a blogger who hides behind anonymity to go after others is fair game.

with all due respect... bullshit.

[gwangung]

Generally, the anonymity of a blogger ought to be respected. However, the identity of a blogger who hides behind anonymity to go after others is fair game.

Inapplicable in this case, Mr. Whelan,

[Dave C (the uppity newcomer)]

Since when does "criticizing in no uncertain terms" equal "going after" somebody?

[Warren Terra]

Mr. Moto, the anonymity pseudonymity (the difference matters!) of a blogger who uses their soapbox to harass or to scurrilously or otherwise unethically "go after others" would indeed be fair game.

But is that relevant here? Publius criticized one of Whelan's posts and cited others' criticisms of Whelan, all openly and with links. Even if his criticism were to be inane and readily falsifiable it could easily be engaged on its merits instead of acting as if his identity were somehow relevant or his blog post had been so obviously perfidious that he deserved to be named and shamed for authoring it. All of the relevant facts were immediately accessible through Publius's post, after all.

Facilities were readily available both to email Publius and to publicly comment on the blog post, beyond Mr. Whelan's ability to respond from his own soapbox at the NRO. Indeed, Whelan used all three of those avenues to express his disagreement. Going beyond that to disclose personal information that Publius did not wish to have exposed was completely unnecessary, and served only to indicate Mr. Whelan's own pettiness and refusal to honestly and sincerely engage in debate with those who disagree with him - failings that no doubt were seen as qualifications for clerking with Scalia and serving in the Bush OLC from 2001 to 2004.

Indeed, this sort of carelessness with fact and vituperative response to criticism seems to be a pattern with Whelan.

[cleek]

you'd think such a brilliant a lawyer with such "outstanding" credentials would know enough Latin to know what "ad hominem" means. guess he missed that day in Rhetoric 101.

[Gary Farber]

Having now read Eugene Volokh's blog post, which I wouldn't have bothered to do if not for Whelan's calling attention to it, I'd have to say that this is quite correct: “Volokh actually decimates Whelan’s argument.”

Eugene Volokh is unfailingly polite, but his post, in his own mild-mannered way, rips Whelan's point to molecule-sized shreds.

What I left unstated above is that the most moronically dense aspect of the-reply-by-outing is that it turns a post that would otherwise be paid little attention to by the blogosphere, and almost entirely forgotten within a few days, into a pointer to a post, the one that the outer is "defending," that becomes infamous to countless readers throughout the blogosphere, who wonder what on earth could have stung the outer into such desperate outrage, and said poster and poster become widely famous for their violation of blogospheric etiquette and blinding stupidity.

Thanks, Mr. Whelan, for calling such attention to Eugene's post!

You keep telling yourself that adding the words "what is most distinctive about" completely changes how wrongheaded is your post about how the Supreme Court works. Yes, Eugene Volokh got it all wrong.

That'll work.

[liberal japonicus]

wow, the impulse to be a brownshirt is never far below the surface. I wonder if Volokh make note of it.

[laxel]

This is a "Massengill Moment" if ever there was one. Hopefully Mr. Whelan got a look at the countertops in the Publius household while he was mucking around... it would have been irresponsible not to.

[Gary Farber]

"However, the identity of a blogger who hides behind anonymity to go after others is fair game."

"Posted by: mr. moto"

How amusingly self-referential.

If we were in a Star Trek episode, we could tell this one to the computer to make smoke come out of it, and we could watch it blow itself up.

[Gary Farber]

Thanks for the link to Greenwald's 2008 post about Whelan, Warren.

I am unshocked to learn that Whelan can't even successfully use a search engine.

Who wouldn't want a lawyer less competent than a junior-high-schooler at doing the most elementary research?

Talk about embarrassing.

[lsdjkflkj]

Sorry completely applicable. When aa anonymous person uses posts to try to impugn a writer's reputation by suggesting they're just some 'legal hitman' that is certainly the type of sleaze that shouldn't be allowed behind to do it under the veil of anonymity.

It's a shame that publius didn't have the intellectual integrity to attack the arguments as opposed to the person. Perhaps Prof. Blevins will remember that the next time he pens one of his screeds.

[S.G.E.W.]

This is going to get ugly.

Um. Uglier, rather.

[Catsy]

Mr. Whelan fails at being aware of all internet traditions.

The beauty of this is that it's really a self-inflicted wound. Ed writes something self-evidently stupid about law. People who actually know something about law point out how stupid Ed's post is. Ed responds by going nuclear on publius, someone who is--forgive me--fairly small potatoes as far as the blogosphere goes. In the process committing what is possibly one of the few unforgivable sins on the Internet, that of outing someone else's pseudonym for no reason other than that they pwned you.

Way to go, Ed! Thanks to your inability to restrain your inner douchebag, thousands of people who would never have known who publius is or how idiotic your opinions on Sotomayor are will have their attention called to both.

FAIL.

[Warren Terra]

lsdjkflkj, three questions:
1) Did you read the preceding comments - in particular Gary's comment pointing out the absurdity of using a blog to pseudonymously criticize a blogger for pseudonymously criticizing a blogger?

2) Do you understand difference between anonymity and consistent use of a pseudonym? In fact, given the unpronounceability of your chosen pseudonym and the suggestion from its appearans that it's a random series of letters from the normal rest position of fingers when touch-typing, do you even use that pseudonym consistently, given that you so deride what you misname "anonymity"?

3) Publius did not name Whelan a "legal hitman", he quoted another prominent blogger naming Whelan so, and in that block of quoted text the "legal hitman" phrase was not the part of the quote Publius was emphasizing.

It's really a shame that you didn't have the intellectual integrity to attack the arguments either within or about Publius's post as opposed to Publius. Perhaps you will remember that the next time you pen one of your screeds.

[Jim Fischer]

publius, you are almost as good at writing ad hominems as you are at hurling them in class. Love you long time, buddy boy.

[gwangung]

Sorry completely applicable.

No. Not really. For one thing, you're doing quite a good job of impugning your own reputation; a much better one than the rather light prick Publius applied.

And argument by assertion is particularly stupid, Mr. Whelan. So is sock puppetry.

You're really not aware of much in the real world, are you, let alone the internet?

[Gary Farber]

"I'd have to say that this is quite correct: 'Volokh actually decimates Whelan’s argument.'"

I need to revise this, as I was over-hasty in writing it.

If Volokh had merely decimated Whelan's attempted point, nine tenths would be left standing. Volokh actually destroyed nine tenths of Whelan's point.

Shame on publius for careless use of "decimated."

Interestingly, lsdjkflkj is an identity just created in the past hour, and who only has one comment on Typepad as yet.

I'm thinking Ed Whelan probably has no idea what's wrong with using sock puppets, either, as well as no idea what the difference is between "anonymity" and "pseudonymity."

[Gary Farber]

"It's a shame that publius didn't have the intellectual integrity to attack the arguments as opposed to the person."

Yes, that certainly would be a defense of what Ed Whelan's done.

Oh, wait.

[gwangung]

Oh, Mr. Whelan is just digging himself in deeper and deeper.

Guess I WILL make money opening up a shovel shop.

[mr. moto]

What's with gwangung's insistence that every comment in support of outing Blevins is actually an incident of sock puppetry on the part of Whelan?

[liberal japonicus]

You know, I didn't even think that someone would be so stupid as to resort to sock puppetry to go after Publius, but now that it has been pointed out, it seems pathetically obvious.

However, I'm hoping that lsdjkflkj can be fleshed out a bit more, explaining if s/he is such a big fan of Whelen that s/he couldn't just sit back and watch him be savaged or a person just interested in truth, justice and the American way. Will it be an aspiring law students or perhaps a small town lawyer who just didn't want to get caught up in the big city life? Will they know Whelen personally or just have been attracted to his incisive writing on the net? Will lsdjkflkj be a liberal who sadly just can't let this attack pass or a conservative who just happened to be following this? The pregnant possibilities of a new character are always so exciting.

[Gary Farber]

I really like the part, back when Whalen was defending his incompetence at using search engines, where he blamed the search engine: "Never mind that I had done what strikes me as a sensible search (and one that should have yielded more results that Greenwald’s)...."

Yes, if only the Washington Post's search engine was more "sensible." How inconsiderate of it!

[gwangung]

What's with gwangung's insistence that every comment in support of outing Blevins is actually an incident of sock puppetry on the part of Whelan?

Probably because I have an IQ above room temperature, Mr. Whelan.

[Gary Farber]

I wonder if Ed Whalen parties with Mary Rosh at Federalist Society shin-digs.

"What's with gwangung's insistence that every comment in support of outing Blevins is actually an incident of sock puppetry on the part of Whelan?"

Want us to take you seriously? Link to some examples of your blog comments prior to yesterday.

Then, of course, since anonymity isn't credible, give us your real name and a means to check it.

And, lastly, make comments that aren't ad hominem.

[ral]

A cartoon (sorry, no link):

9 Roman soldiers standing, one lies dead, an officer holds a club.

One soldier (aside) says to another, "hey, this decimation thing isn't so bad."

[Warren Terra]

It is perhaps unfair of Gwangung to claim that all three people suddenly commenting here, none of whom have done so before according to a Google search of Obsidian Wings for their handles, are sock puppets. Certainly the Flying Monkey Hypothesis should not be discounted.

Still, lsd-etc. seems particularly likely to be a sockpuppet - as Gary points out, that handle was generated today and has been used for the one comment, and because lsd-etc. seems particularly exercised about the "legal hitman" appelation, as was Whelan in his email to Publius, although it's hardly the most interesting part of Publius's post and as even Whelan's own post concedes it was not in fact conferred by Publius, but only quoted by him.

With regards to lsd-etc., I note that what I posed in a previous comment as three questions are instead two questions and a statement. Still, I'm sure Lsd-etc. has the imagination to address to issue implied by the statement, not that I expect any response.

[mr. moto]

Probably because I have an IQ above room temperature, Mr. Whelan.

Apparently not.

[gwangung]

Apparently not.

Here's another shovel.

[mr. moto]

It is perhaps unfair of Gwangung to claim that all three people suddenly commenting here, none of whom have done so before according to a Google search of Obsidian Wings for their handles, are sock puppets.

You're convinced we are sock puppets because we haven't commented here before? That's rather limp reasoning. I'm surprised we're only three seeing as how Mr. Whelan posted a link to this blog post on his nro blog today. As for myslef, I'm sure this blog uses a site meter of some sort. It wouldn't be too much work using the timing of my comments to find out where I'm posting from, and to see that it is in fact literally thousands of miles from where Mr. Whalen is (unless Mr. Whalen happens to be on vacation in Honolulu, that is).

[dr ngo]

Mr. Moto, I will take your word for it that you are not Whelan's sock puppet.

You are merely a fool.

(And probably a pseudonymous fool, unless your name really is Moto, in which case I'm sure you'll tell us. Because "the identity of a blogger who hides behind anonymity to go after others is fair game." And you wouldn't want to be a hypocrite as well, would you?)

[mr. moto]

And speaking of sock puppets, didn't somebody on this thread approvingly cite to Glenn Greenwald?

[Warren Terra]

Mr. Moto,
I don't see any value judgements given about Mr. Greenwald in this thread. Instead, I linked to a Greenwald post in which he criticized Wheelan, a criticism that was clearly fully merited on the basis of the evidence included in his post, and which prompted Whelan to respond in an unhinged fashion.

This misunderstanding of yours speaks to a broader point: it should be possible to evaluate the arguments of a post without reference to or even knowledge of the character of its author. I am not a regular reader of Mr. Greenwald, so I have no particular interest in the quality of his character, although I have been around the blogosphere long enough to recall a kerfuffle some time back (in which Greenwald claimed that his partner had commented pseudonymously on his blog from their shared computer). Still, although I am not a regular Greenwald reader, those (often overwrought) posts of his that I have read tend to be so fully and indeed exhaustingly documented that his credibility is completely immaterial. Certainly his past misdeeds are irrelevant to either his actions or Whelan's actions in the post I linked to.

[Jay C]

However, the identity of a blogger who hides behind anonymity to go after others is fair game."

As opposed, no doubt, to the pseudonymity of a blogger who agrees with your points, and lauds your logic to the skies - their identity should be protected?

Putz.

[mr. moto]

As opposed, no doubt, to the pseudonymity of a blogger who agrees with your points, and lauds your logic to the skies - their identity should be protected?

Not at all. Nobody owes a blogger anonymity. I would neither be surprised nor whine if someone announced they had discovered who mr. moto really is. Especially if I pseudonymously picked fights with ideological opponents all over the internet.

If the outed blogger was a Chinese academic challenging the Chinese government I would agree that, morally, all should do their best to respect and uphold his anonymity. But as it is, an American academic now has to endure a little personal embarrassment and discomfort at the occasional conference cocktail function because someone he insulted behind his mask of anonymity turns out to be present. Bloo hoo hoo.

[Harald Korneliussen]

mythago: Did you read my post at all? Yes, judges, by their nature, make policy whether they want to or not. That's what I said, too.

I think constitutions and international treaties should be reformed to rely on judges as little as possible.

[Jamey]

Sotomayor's joke is all we need to know about her fitness for the Court. Pay no attention to seventeen years on various benches, whence one can glean more substantive and illuminating examples of her judicial temperament and legal judgment.

Yeah, Whelan knows better. That he doesn't act on it says more about his basic decency as a human being than it does about his fitness to comment on legal/judicial matters.

[dude]

I'm not sure someone posting this:
"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:"

Deserves anonymity. You want to criticize a dude like this in public, man up.

[Gary Farber]

"Deserves anonymity. You want to criticize a dude like this in public, man up."

I can't get over how many people are stupid enough to post things like this and sign them something like "dude."

It leaves me depressed over the state of humanity. It's as if countless Homer Simpsons were posting to the interwebs.

[Mike Sigman]

Having been around the internet since before there were browsers, it's a laugh to see the outrage at an anonymous poster who is outted. Pfui. He brought it on himself when he decided to go after someone else's reputation while trying to keep his own safe.

If Ed Whelan was outted somewhere, it's obvious most of the partisans wailing about the sacrosanctness of "anonymity" would be cheering instead. Hypocrisy. And I say that as someone who only barely knows who Whelan is and who couldn't care less about him.

[TCO]

Misuse of decimate. Go hang your head in shame. And don't give me any wimpy Wiki argument about the word changing its meaning. Only with morons.