Sarcasm usually does exactly what you suggest. Of course, sometimes sarcasm mocks all popular positions (as Matt Stone and Trey Parker do often) and can actually reconcile positions. Well, at least I like to believe it can.

Oren:
Oh, as if you know what you're talking about.

/sarcasm off

It's not that it's sarcasm, it's that it's a strawman.

Some people assume the individual is always right and the big evil goverment is always wrong. Others feel the government wouldn't waste its time on someone unless he was clearly guilty.

The government spent plenty of time keeping Korematsu detained. Government consists of people. People as a rule don't like to admit they were wrong. The more serious the consequences of admitting one is wrong, the less likely one is to want to admit it. Mistakes get made, and people become invested in the original mistake, and spend their time trying to defend it or cover it up in some way. That's how the world works. Were they wrong on Padilla? Maybe, maybe not, I don't know, but on that issue I'm not going to just take the word of the people who have a vested interest in defending the original decision. There's a reason why habeas corpus is in the Constitution.

I think this is a reaction to a first-blog-post issue.

One of my problems with X's post is that it reads more like a rant than the kind of thoughtful, analytic post you would expect from a former judge.

That's definitely fine for a first blog-post, but generally people (at least, of the conservative bent I prefer) like to read posts which are more dettached and useful.

I prefer to format posts with: problem, discussion, solution-proposal. Maybe one or two of these elements are missing on occasion, but in general, a post with a lot of complaints but little or no deeper discussion or suggestion of a solution is a bit annoying.

In this particular case, the bloggers likely audience is at least familiar with the general facts behind the post, so the main selling point would be analysis and/or suggestion.

I'm guessing/hoping JudgeX will provide more in-depth postings in the future.

So was the sarcasm the problem? Not particularly. But the comment was pretty lame for not addressing the issues which one could probably extrapolate from the original post.

It's not like the arguments are unknown at this point, so I'm not sure I see why Judge Sarokin has to rehash prior posts on the subject, or invent a new angle.

His point is precisely about passion and his surprise at the general willingness of Americans to accept the detention of an American citizen on a virtually permanent basis without a trial or access to a lawyer.

I'm sure there are plenty of people (e.g., Carl) who think the Bush administration is on firm legal and moral ground. What I think Sarokin is getting at is this: a lot of people disagree with the Government, but they're not really as engaged or enraged as they should be. I think Sarokin is preaching to the choir, which explains his lack of analysis. He just wants the choir to sing a bit more loudly.

The point of this post is effective sarcasm--not Judge Sarokin's commentary on the Padilla case--though based on the comments I suspect many wish to discuss that topic instead.

The most famous sarcasm in literature is probably Marc Antony's funeral oration directed at the conspirators in Act III, Scene two of Shakespeare's Julius Caesar:

Friends, Romans, countrymen, lend me your ears;
I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Caesar. The noble Brutus
Hath told you Caesar was ambitious:
If it were so, it was a grievous fault,
And grievously hath Caesar answer'd it.
Here, under leave of Brutus and the rest--
For Brutus is an honourable man;
So are they all, all honourable men--
Come I to speak in Caesar's funeral.
He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honourable man.
He hath brought many captives home to Rome
Whose ransoms did the general coffers fill:
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept:
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man.
You all did see that on the Lupercal
I thrice presented him a kingly crown,
Which he did thrice refuse: was this ambition?
Yet Brutus says he was ambitious;
And, sure, he is an honourable man.
I speak not to disprove what Brutus spoke,
But here I am to speak what I do know.
You all did love him once, not without cause:
What cause withholds you then, to mourn for him?
O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with Caesar,
And I must pause till it come back to me.

So sometimes, sarcasm works--as it did in this case.

Sarcasm in rhetoric performs the same function that a reductio ad absurdum performs in logic. It is an acid, a way of stripping away the varnish of cant, bad argumentation, and flawed logic, leaving behind the essential question under debate, exposed for all to see. Like many toxic things, sarcasm must be handled very carefully, but when properly used and appropriately concentrated, sarcasm has a way of forcing us to examine the basics, and sometimes, can leave us saying "Wow. You know what? When you look at it like that, it really does sound stupid."

So I agree that sarcasm is frequently nothing more than a rhetorical trick to make your opponent look stupid but I don't think it is always an unconvincing part of an argument, or even a distraction from the real points.

First of all sarcasm can be quite relevant when the other side has based their case on 'common sense', 'obvious facts' or other unjustified knee-jerk reactions. Sarcasm/Satire is useful in these situations as it makes the uncriticized assumption underlying the argument look silly forcing many people to rethink their commitment to it they wouldn't have done otherwise.

I think a good example here is the recent Californian proposition mandating that sex offenders be subject to lifetime GPS monitoring, can't live within a quite large distance from a school etc.. Now the problem with this sort of issue is that you can point out all you want that most sex offenders aren't strangers, this might discourage family members from turning the offenders in, it would unfairly force the offenders to locate exclusively in rural areas, remove the ties that prevent many people from reoffending, and so forth but it tends to have no effect. People just have this non-intellectual knee-jerk response that 'off course we ought to punish sex offenders more and do everything we can to know where these dangerous predators are.' The strong instinct to keep track of people/things that our threats to our children combined with the deeply ingrained stereotype of the sexual predator as someone who lures *strange* kids into his power is just too strong for the argument to penetrate.

However, add just a bit of sarcasm, "Great Idea. Let's create roving bands of homeless pedophiles without anything to lose. I'm sure that will make our kids safe," and you force them to actually consider both sides of the issues and really engage the intellectual arguments.

I mean I think this is what was going on in a modest proposal as well. There were certain default/assumed social attitudes which people just wouldn't question about what was a moral way to treat the poor/unfortunate. By sarcastically representing them in a way that seems as obviously wrong as the way the other position seemed obviously right you smash through the barrier people have to considering the other position.

Another type of situation where sarcasm can be useful is when the discussion is being burdened by an unfair seriousness/sobriety. For instance suppose you believe that the harm to people's liberty/enjoyment from banning assault rifles (infrequently useful for self-defense) outweighs the loss of life caused by assault rifles. When the other side makes a great deal of very somberly and seriously talking about all the children who have died and giving emotional testimony how this one time a gun law would have saved little johnny people won't really give your statistical arguments/liberty concerns serious weight. However, if you remove the moral/common sense authority the other side has using sarcasm (so why don't we just ban kitchen knives too) you once again force people to give your side a chance.

I think this sort of nastiness is routine because it's not about persuading the other side. It's about demonizing the other side so that your side gets worked up to a fever pitch. To some extent this seems to have worked for the Left. They may not have made many converts in the last few years with their extremism, but they have created a sense of identity within their ranks that makes persuading them of the contrary difficult. It also sustains them against contradiction and in the fact of tactical and strategic defeats.

Most of the time, persuasion doesn't work very well. But rabble rousing substitutes intensity for numbers. It works especially well when the guardians of public rhetoric -- i.e. the MSM -- instinctively side with you.

However, I think it can be an incisive rhetorical weapon when used properly.

I agree, Parvenu. Sarcasm has a place in argument if it's tempered with solid logic and used sparingly. I would argue that even in our profession, a well delivered sarcastic remark can be a powerful coup de grâce, so to speak, against a weak counter-argument. I think it's fair to say that Justice Scalia for example has written numerous opinions where his sarcasm seems to figuratively drip off the page. I guess timing is everything and knowing your audience is important as well.

"I think this sort of nastiness is routine because it's not about persuading the other side."

Exactly. But even if it were, I'm not sure it's less likely to persuade than calm, reasoned argument. I have seen few examples of people changing their minds on an politically-charged "soft" question (like Padilla's dangerousness) in response to argument.

I agree with Orin, which is why I find Jon Stewart and Stephen Colbert to be vastly overrated as serious cultural commentators (precisely because passive-aggressive snark, to me, is not serious cultural commentary).

I agree heartily. It says something very sad that they have attained such status. Part of it, to be sure, is that the MSM digs up an infinite supply of anti-Bush canon fodder for their grist mill, as it were. Part of it is the intellectual inadequacy of the coming generation.

In effect, Sarokin is saying that it is more important to treat terrorists well than it is to keep Americans safe.

That is nonsense. You have to put "in effect" in front of that sentence, because it's so utterly false.

The consensus on these two threads appears to be that, like it or not, the judge's post was defective due to a lack of argument. Pooh.

If we trouble to read the post, we see that it begins like this: "This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla ...." IOW, his own outrage is impelling him to start a blog.

Sarokan then goes on to give all the reason why an American *ought* to be outraged:

an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant".

Why, exactly, should anyone have to have it *explained* to him what's wrong with that? As I believe Justice Scalia put it, the feds have 2 choices with someone they accuse of Padilla's crimes: charge him with treason, or let him go. They did neither.

Habeas corpus is not about "protecting terrorists." It is, as the judge explains in his last paragraph, a fundamental right because it's essential for distinguishing likely wrongdoers from those held by mistake or for arbitrary reasons. It's one of those cherished, hard-won rights that any "conservative" worthy of the name would die in the last ditch to defend.

Outrage may not be terribly persuasive (cf. excellent comments on sarcasm above), but it shouldn't be underestimated. We don't expect people to provide reasoned arguments why molesting children or defiling altars are the wrong thing to do; we're outraged by anyone who does those things, or defends them.

What the judge's post suggests, rightly I think, is that in the realm of constitutional law, habeas occupies something like the same position. It would be on any short list of fundamental human rights. "We hold this truth to be self-evident," you might say.

Orin's post triggered some reflection. I have to admit, I tend to use sarcasm. Why do I do it? Mostly as relief from one of those discussion-stopper arguments that, in my humble opinion, are so obviously useless and stupid. It leaves me exasperated. Can't argue with a fool, yet the fool may have great power.
As an example the classic "If it saves only one (child's) life, it will be worth it." Sarcasm helps as does a long groan.

For the best current illustration of concentrated distilled sarcasm, displayed for our amazement and edification, I suggest Ann Coulter. You can find excellent examples of what you're talking about any old day by browsing her columns.

You say of sarcasm: "If you happen to agree with the speaker's view already, this can be pretty entertaining: you don't need an argument, so you enjoy the affirmation of how smart you are and how dumb the other guy is. But what if you don't already agree? Well, in that case sarcasm doesn't tell you very much except about the nastiness of the speaker."

You are describing the essence of Coulter's writing. If the reader agrees with her, he is gratified by the sharp edged way she makes her points with sarcasm. If he disagrees, all her rhetoric makes no sense to him, and seems to be mere nastiness.

However, she also often salts her columns with factual statements, tho the facts are usually couched in sarcastic form. It is these facts, IMO, that create the extraordinary power of her writing. The reader who disagrees with her point will hate- absolutely, furiously hate- the sarcasm. But in crafting a response (even if only in his own mind), he can't just condemn the sarcasm, he must inevitably also deal with the fact. The sarcasm is the bait; the fact is the hook buried within.

Her best columns are heavily sown with facts. The current one appears to be almost totally sarcastic blather but does contain one important factual statement.

She starts with:

"The "bipartisan" Iraq panel has recommended that Iran and Syria can help stabilize Iraq. You know, the way Germany and Russia helped stabilize Poland in '39.
Now that Democrats have won the House, they can concentrate on losing the war. ...."

... and continues with a page of unrelenting 9th grade snippiness about Democrats, MSM, waterboarding, and the appropriateness of interrogation techniques for Khalid Mohammed, but then she drops in one factual assertion:

"Khalid Sheikh Mohammed was the principal architect of the 9/11 attacks and is believed to have played a role in the 1993 World Trade Center bombing, the Bali nightclub bombings, the filmed beheading of Wall Street Journal reporter Daniel Pearl, a thwarted 2002 attack on a bank tower in Los Angeles, and Operation Bojinka, a plot to blow up 11 commercial airliners simultaneously."

Any effectiveness this column might have comes from that sentence. IMO. I don't think this is one of her best columns, but her writing in general would be a rich source of material for a class in logic or persuavive writing.

I agree that sarcasm can be effective, though reductio ad absurdum is not a good example of this. Indeed, the problem is that it is badly done, typically addressing a straw man, as in this case. As a devise, reductio ad absurdum is not a very strong one and often simply a straw man argument.

Sarcasm done well is a rhetorical tool for exposing an internal inconsistency in an opponent's argument, often with an illustration of hypocrisy

I would like to add that an effective use of sarcasm can be found in the writings and oratory of Christopher Hitchens. It's possible that his English accent contributes to this persona but anyone on the receiving end of his wit quickly realizes his impressive command of facts and logic.

I think Prof. Kerr's point is being overlooked, though maybe he stated it too broadly. The problem with Carl Levin's sarcasm was that it missed the point; it implied a ridiculous position to Judge Sarokin, rather than addressing the issue.

It's as if I were arguing the merits of Social Security reform with a Republican, and said, "oh, well, Republicans are brilliant and Democrats are all idiots, so you must be right." That's sarcasm, but it's not very good sarcasm, because the message is simply the opposite, that Republicans are idiots. Which isn't terribly persuasive.

Sarcasm should be a rapier, not a bludgeon.

I wonder if sarcasm can't be used to restart a discussion.

When my children present a seemingly (to them) logical and rational position that is anything but, it cannot be responded to with logic and rational counterarguments. The best thing to do is cleanse the slate and start over.

I burst into a horselaugh. Full and from the belly. Then restart the discussion as if the absurdity recently expressed had never occurred. It's like hitting the reset button. It expresses "You can't be real" with warm tenderness.

Sarcasm usually only works when coupled with serious irony, parody, or both. Even then, it's an ambiguous tool. It never convinces those who you are mocking but may sway those in the middle to see the problems. Something like Swift's "A Modest Proposal", which used irony, and could be read sarcastically, begs those in the middle to provide the counter arguments. When they do so, they find themselves adopting counter arguments Swift wished to make.

Of course, Swift achieved this goal by selecting words to minimize the sarcastic tone which made it appear the writer actually believed what he wrote.

I don't think Levin managed to do that. (And if Levin has masked his sarcastic tone so as to convince people he meant what he wrote, likely people would respond with questions like: "How does saying the accused shouldn't wear blinders translate into we should let him carry bi-focals. Besides, if he owns bifocals and needs them, why shouldn't we deprive hin of his bifocals when he visits the dentist? Are we afraid he'll use them to assault the dental hygenist? These were probably not the questions Levin wished provoke.)

Judge Sorokin uses a device considerably more offensive than sarcasm, he uses the old "..they are husbands, wives, brothers..." etc... heart-strings tug to describe those taken on the battlefields of Iraq, Afghanistan and, yes, Padilla.

Well, how about the husbands, wives, daughters, and sons of the 3,000 protected persons killed at the WTC? Or how the thousands of others killed around the world from here to Bali and back over the past years?

Judge Sorokin and his ilk are a perfect example of why our courts are simply not up to the challenge of the GWOT. They may be effective at settling marital dissolutions and small claims lawsuits. But as Moussaoui and that terror-enabling NY lawyer's cases prove, their woefully unable to deal with Islamofascism.

And Anderson persuasively argues that "civil rights" has anything to do with the workings of our courtrooms (at least most of the time).

What was it...6 of Moussaoui's jurors took into account his "difficult childhood" when deciding on his sentence? How is justice (or civil rights) served by baloney like that? Is that what we should tell the victim's relatives when Moussaoui or someone like him sets off a nuke in Seattle? "He had a troubled childhood......"

I notice that Carl Levin has been conspicuously absent from the comments after (a) earlier commenters had requested specific answers to reasonable questions, and (b) Professor Kerr gave his comments notoriety on the main page of the blog. I'm looking forward to his reappearance for an explanation of his "arguments."

Judge Sorokin and his ilk are a perfect example of why our courts are simply not up to the challenge of the GWOT. They may be effective at settling marital dissolutions and small claims lawsuits. But as Moussaoui and that terror-enabling NY lawyer's cases prove, their woefully unable to deal with Islamofascism.

Well said. We are facing an ememy more dangerous and certainkly more insidious than any that we have faced before. To think that the old rules apply is the worst sort of naivete. In the real world -- as opposed to that happy utopia that exists only in the heads of leftists -- there are compromises. Is there a sacrifice of rights in a case like this? Sure. Is it infinitely preferable to the sacrifice of thousands of American lives? Obviously. Why so many can't see this is beyond me. Some of you need to try watching "24" sometime.

I have to assume this is a put on

DougJ is famous for his peerless impersonations. Which didn't stop me from missing that he was the "In effect" commenter whom I went off on. Curse you, DougJ!

Sarcasm can be a suberb form of argument if it is both understated and accurate. Judge Sorokin's post was certainly amenable to that kind of response, since the judge failed to come to grips with the basis for the other side's actions. However, Carl Levin's sarcastic response was overstated, and not accurate. Most important, the sarcastic comment fails because it does not combat the weakness of Judge Sorokin's post. The weakness is not that Judge Sorokin favors due process of law for Padilla, but rather that the judge ignores the arguments against extending that protection.

Judge Sorokin's cri de coeur overlooks the strength of his opponent's case, which is this: Our American criminal process, which requires a very high standard of proof from the government, assumes that it is more harmful to punish the innocent than to acquit the quilty.

But any form of incapacitation is also punitive. Suppose the government has excellent reason to believe that an individual will cause very grave, very widespread harm, but it will be difficult to establish that, without compromising secret agents, as proof beyond a reasonable doubt in a criminal trial (with the need to confront witnesses, avoid hearsay, avoid tainted evidence, etc.).

Let us presume that is the case with Padilla: the government has a very good reason to think that if it releases him, he will kill hundreds or thousands, but it will be tough to convict him and thereby incapacitate him through incarceration. (The Dirty Harry situation.)

Judge Sorokin fails to address this, and so his blog post is not a serious argument about the issue he raises. He should therefore reasonably be subject to ridicule. But from Prof. Kerr's post, it is evident that Carl Levin has failed in his sarcasm, because the sarcastic comment is the same thing that Judge Sorokin is doing (ignoring the opposing argument), but in reverse, and with more rudeness.

Correct me if I'm wrong, but wasn't Padilla picked up immediately after entering the United States after being in an enemy battlefield location.

Padilla was returning from a trip which took him to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq. At that time (May 2002), only Afghanistan could plausibly be described as "an enemy battlefield location".

In any case, that travel list is utterly irrelevant to the "dirty bomb" accusation which was being discussed in this thread as if the government were actually charging him on that basis. It isn't.

You need to start by reasoning by learning mathematics and how you can prove things where the obvious and unarguable standard makes it possible to correct common bad intuitions that would slide in a less clear cut discipline.

Forgive my skepticism please: this is a good idea in principle but given that mathematicians are notoriously liberal, I don't trust them not to inculcate the kids with left-wing ideas. I realize that no matter who teaches them at college, this is likely to happen, but those in the hard sciences have a particulalry bad repuation.

Anderson - unlike Judge Sarokin, in your comment above you actually engage with the argument of your opponent. Your remarks are therefore much less open to a legitimate sarcastic attack then are those of the good Judge.

Liberal bias in math?

Not in their research, but in their own personal politics. Something like 10 times as many tenured professors in math and physics gave money to Kerry as to Bush. Is that who should be instructing our children in the way of reason?

Further, I think it is fair to say that the whole slant of research in pure mathematics can be said to be liberal. It is logical, to be sure, but by working on problems with no forseesable application, as most do, they betray a contempt for the hard realities of the free market.

Not in their research, but in their own personal politics. Something like 10 times as many tenured professors in math and physics gave money to Kerry as to Bush. Is that who should be instructing our children in the way of reason?

Further, I think it is fair to say that the whole slant of research in pure mathematics can be said to be liberal. It is logical, to be sure, but by working on problems with no forseesable application, as most do, they betray a contempt for the hard realities of the free market.

This argument is a perfect example of when one might use sarcasm to refute a conclusory statement masquerading as authoritative. A mathmetician or physicist might mockingly refute the inference that democratic political preferences show a lack of reason (there is a possibility that only mathmeticians and physicists would understand said rebuttal).

Someone might sarcastically ask just who exactly is subject to the hard realities of the free market. In making choices as to who receives governmental subsidies, professors in math and physics might rationally prefer that they receive those subsidies (as they might be more likely to do under Democrats). They might mock the statement that they work on problems with no foreseeable application by pointing to one of the many areas of research where such was originally thought to be the case, but has since become an extremely important part of modern life (electricity perhaps?).

Anderson - unlike Judge Sarokin, in your comment above you actually engage with the argument of your opponent. Your remarks are therefore much less open to a legitimate sarcastic attack then are those of the good Judge.

Well, that's what *I* thought, but it wouldn't have done for me to say so ... thanks!

Forgive my ignorance please, but I don't get your argument. Liberal bias in math?

Aieee! DougJ is *spoofing*, people. I failed to read his name &got spoofed myself, above. DougJ is beyond sarcasm, beyond irony, &in a Riemannian feat of ideological spin, has gone around the Right to the Left again. --I mean, if you can trust what the liberal mathematicians say.

Well, (grinning) I'm not a logic nazi and suspect that alternatives are available:

First to understand how language can be abused -- See Richard Mitchell's Less than Words Can Say which can be found at Amazon, too.

Then consider Sister Miriam Joseph's Trivium.

Next, put Madsen Pirie's How to win every argument on your bookshelf.

Ah, so DougJ is showing us a shining example of when sarcasm is effective?

Well, inscrutable, anyway. If we were all convinced today that Swift seriously advocated the cannibalism of Irish children, I'd say his rhetoric would have failed.

They might mock the statement that they work on problems with no foreseeable application by pointing to one of the many areas of research where such was originally thought to be the case, but has since become an extremely important part of modern life (electricity perhaps?).

Seems unlikely, given their seemingly congenital inability to grasp the very idea of irony. I mean, when was the last time you saw irony in a Star Trek episode.

JYLD: You keep missing the point worrying about what he was charged with or not charged with. He doesn't need to be charged with anything. He's an enemy combatant picked up immediately upon returning from an enemy battlefield location. He can be held without charges for the duration of the conflict to keep him from returning to the ranks of the enemy with whom we are at war.


That is precisely the principle that the administration was afraid to submit to the Supreme Court for review, which is transparently why DOJ tried to moot the case. If this court confronted the question you pose, a clear majority -- likely led by Scalia -- would smack it down. And if DOJ now tries to reclassify Padilla as an enemy combatant, the court stands ready to act. Kennedy, Roberts and Stevens have made that clear.

Write your president and dare him to try. He runs from the courts like a fugitive.

Mark! JaO! The Dog has spoken! Do you want to make him angry or something?

Speaking of sarcasm, is Junkyard Dog for real?

How about David Bernstein?

They both sound an awful lot like a bad imitation of Bill O'Reilly.

I have this awful feeling that the Dog might be real. It's why I left here earlier. He scares me.

Orin, you might have added that sarcasm is really, really hard to do well. You have to be a very gifted writer to pull it off if you're going beyond just a one-liner. Shakespeare could do it in Antony's funeral oration, but most of us can't. Unfortunately sarcasm is one of those areas where people vastly overestimate their own abilities.

I think you're even more afraid that he's *not* real, and that you have met your match.

Well....you're right.

[OK Comments: Lev, what is your argument? I don't think I understand your point.]

My point in this specific case is that you have been taking off on Carla Levin for engaging in sarcasm against Sarokin, instead of engaging Sarokin's argument.

My point is that Sarokin had no argument. There was no argument to engage. There was no debating to debate. There was only an ex-judge, relying on his status as a former judge, making statements of dislike, unsupported by anything other than his personal opinion as a former judge.

Carla Levin's substanceless sarcasm was an exact reflection of Sarokin's substanceless post, arguing stating "from authority."

As a general matter, using only sarcasm in response to substantive argument makes the sarcasmist look rather stupid. However, as I said, the general case does not apply here. At worst, and at best, they both look substanceless and stupid, because they are.

Lev,

unsupported by anything other than his personal opinion

Isn't that the definition of a liberal judge issuing rulings about the constitution??

;)

Says the "Dog"

It remains true does it not that the highest court to *rule* on the issues says the President has the authority to place enemy combatant Padilla in confinement for the duration of the hostilities.

As stated, this is NOT true. Here's the sequence:

Padilla first brought his habeas petition in the Second Circuit. That Circuit ruled that he could not be held without charge. The Supreme Court reversed, but not on the merits. It held that the petition should have been brought in the Fourth Circuit.

Padilla then brought his petition there. The Fourth Circuit did hold that he could be held indefinitely without charge. However, when Padilla filed his cert petition, the Administration announced it would charge him, thus rendering the whole issue moot.

So the situation is this: the Second Circuit ruled in Padilla's favor, but that was the wrong court. The Fourth Circuit ruled against Padilla, but the Administration's own actions made that opinion moot.

My point is that Sarokin had no argument. There was no argument to engage. There was no debating to debate. There was only an ex-judge, relying on his status as a former judge, making statements of dislike, unsupported by anything other than his personal opinion as a former judge.

Shoot, this is harsh.

It seemed to me the judge wrote an introductory blog post in which he a) Told potential readers who he is b) and revealed his motivation for starting a blog.

He wasn't using his status to advance any argument or theory. Is he required to hide who he is, conceal his motive for blogging and just post well reasoned argument on something coming straight out of the shute?