[Orin Kerr, September 14, 2007 at 1:31pm] Trackbacks
Ronald Dworkin and the Wall Street Journal Editorial Page:
The politics are 180 degrees apart, but I find a significiant similarity in style and method between the first and last few paragraphs of this analysis of the Supreme Court by Ronald Dworkin and the first and last few paragraphs of this essay about Ted Olson's prospects as AG from the Wall Street Journal editorial page. Over-the-top rallies the troops, I guess.
AF:
I happen to agree that these essays are both unpersuasive. But I am reminded of Brian Leiter's comment on the question of tone:

What always strikes me in debates about "tone" and "civility" is that the critics, without fail, will abandon civility and adopt a harsh tone in the presence of the views that they deem "beyond the pale." Invariably, it turns out that they simply draw the line somewhere else . . . and that what really galls them is not the fact of my harshness and dismissiveness—they are equally capable of that when it comes to, e.g., Noam Chomsky or Ralph Nader or me—but rather that it is directed at the views they've been taught to take seriously, to think are serious, the views they've been led to believe are entitled to respect, even if one disagrees.


While my own writing still tends to be measured, this post convinced me that it's better to take on other people's bad arguments on their merits rather than criticize their tone.
9.14.2007 2:58pm
George Lyon (mail):
Dworkin's essay is replete with vituperative which makes the WSJ piece --admittedly strongly worded -- seem pacifist by comparison.
9.14.2007 3:12pm
wm13:
Actually, both the WSJ and Prof. Dworkin are restrained compared to Prof. Leiter, since neither one has accused people with whom they disagree of "academic fraud" which should render them unemployable.

Now if Prof. Dworkin starts calling for the impeachment of Justice Roberts, or if the WSJ calls for President Bush to exercise his common law prerogative to prorogue the Senate, then they will be getting into Leiter territory.
9.14.2007 3:13pm
LTEC (mail) (www):
If Dworkin is representative of the democrats in calling Roberts and Alito "extreme right wing", then everything WSJ says about the democrats becomes reasonable.
9.14.2007 3:18pm
AF:
wm13: Calling the Roberts Court "Jacobin" is a start.
9.14.2007 3:18pm
OrinKerr:
AF,

Given that you are a nasty and evil person who is famed for beating his children and torturing squirrels, I am not surprised that you take this view.
9.14.2007 3:38pm
srg:
Dworkin has always been well to the left, but as far as I know he has never been anywhere near this far out. Could it be Bush Derangement Syndrome?
9.14.2007 3:46pm
Q the Enchanter (mail) (www):
"Given that you are a nasty and evil person who is famed for beating his children and torturing squirrels, I am not surprised that you take this view."

I think I follow your point. But if you were to criticize this sort of remark, its tone wouldn't be your focus, would it? The main problems I see are factual and logical. (Tone, as it were, is an epiphenomenon of those defects.)
9.14.2007 3:50pm
bittern (mail):
Both essays might have some facts in them. But I haven't got the patience to read such dreck. To read them in their entireties solely to judge whether Orin is or is not correct - with respect to tonal comparison - it's beyond my level of interest. So I leave only this ill-informed comment.
9.14.2007 3:53pm
OrinKerr:
Q,

Can you point me to where I criticized the "tone" or "civility" of these writings? AF pretended that I did, but he is an evil person who tortures squirrels and is only trying to malign me to further his personal ends.
9.14.2007 4:29pm
frankcross (mail):
I don't think it's very complicated and it's independent of the morality or propriety of civility. It's pragmatic This sort of tone has two effects: (a) it turns off the clear majority of readers and (b) it fires up the true-believer troops. It's just about playing to your audience.

And if you bother to read Brian Leiter, you'd be aware that he is quite skillful in adapting his "civility" to the particular audience he is addressing.
9.14.2007 5:07pm
AF:
Orin, who is my very favorite legal blogger, might possibly have overlooked a subtle (and insignificant, so he was perfectly justified to overlook it) point: I said Orin's post raised the "question of tone," which "reminded" me of Leiter's post, not that it actually criticized the tone of the two articles. But of course Orin's broader -- and far more important -- point, which is that I took him to disapprove of the essays' "over-the-top" tone, is correct. So characteristically, Orin is right.

Now, at the risk of talking out of turn, I could try to draw a Talmudic distinction between "libel" or "accusing others of bad faith" on one hand and adopting an "over-the-top" style on the other, but in truth it's a weak distinction of little practical relevance, and in any case I'm late for a meeting of Squirrel Torturers' Anonymous. (Orin, in a perfectly legitimate omission given the circumstances, did not mention I am a recovering sqirrel-torturer.)
9.14.2007 5:14pm
JonC:
Prof. Kerr, I nearly always find your commentary spot on, and your legal analyses thorough and thoughtful, but I'm genuinely confused as to what strikes you as "over the top" about the beginning and end of the WSJ piece. The bit about Democrats "run[ning] . . . Gonzales out of town" can be fairly categorized as hyperbolic, but would you mind elaborating on what else about the piece makes it excessive, or comparable to the Dworkin piece?
9.14.2007 5:20pm
OrinKerr:
AF,

Ah, got it. Sorry about the squirrel stuff, I guess I got carried away.

JonC,

The WSJ editorial writers know that the majority of the Senate is not some kind of illegal "posse" that is giving "orders" when they indicate that they would excercise their advice and consent power to reject a nominee. They also that Olson has in fact been an unusally partisan figure in the past. (I happen to think he would be a very good AG, but he has still been a quite partisan figure in the past.)
9.14.2007 5:33pm
squirrel:
Stop the torture! Please!

We'll even give back the nuts. Just leave us alone.
9.14.2007 6:16pm
GV:
Orin, given the current state of the DOJ, and the public's current perception of the DOJ, given Olson's partisan background, wouldn't that make him a bad choice for AG?
9.14.2007 6:26pm
frankcross (mail):
I would say the WSJ was not so overheated as Dworkin, save for the last sentence of their editorial. Reflect on that sentence -- it's hard to show more partisan bias.
9.14.2007 6:27pm
OrinKerr:
GV,

It really depends. Someone can have a very partisan background and yet become an independent and outstanding AG.
9.14.2007 6:38pm
GV:
Orin, that's true, but so what? Not to repeat myself, but given the current state of the DOJ, and the public's perception of the DOJ, given Olson's partisan background (even if he could overcome his background), wouldn't he make a bad choice for the DOJ? I mean, why not just get somebody without that background to overcome? Doesn't the public deserve somebody who they don't have to initially worry about?
9.14.2007 6:55pm
JonC:
Thanks for the response, Prof. Kerr. I guess I don't read much into WSJ's use of the word "posse." I also read the WSJ to acknowledge that Olson has been a partisan (although I'm not sure what about him is "unusually partisan"). However, the WSJ notes that Democrats have in the past supported partisans for the position of AG, and, like you, notes (with a reference to Carter AG Griffin Bell) that being partisan does not necessarily mean one can't be a good AG.

I suppose I could be accused of having my own partisan blinders on, but all in all I didn't find the WSJ piece particularly extreme, and it seems downright mild compared to the Dworkin piece. In any event, thanks again for the prompt response, and for all of your work here at the Conspiracy.
9.14.2007 7:10pm
Pragmatist:
Hmm..interesting. Ted Olson's testimony came very close to perjury in the EPA Superfund episode. Close enough for the House Judiciary Committee to recommend his investigation for perjury by an independent counsel -- a recommendation seconded by the Reagan Justice Department's own public integrity section and ratified by Attorney General Edwin Meese III.

Since then he's also managed to lie about his connections with the Arkansas project and get away with it chiefly due to his negotiation of a "tight-lips" agreement with Ronald Burr.

Yes, I agree he would make a fine AG. A fine *Republican* AG. The democrats lack the chutzpah (or the shame?) to pull stunts like these.
9.14.2007 7:43pm
Shertaugh:
Bush Derangement Syndrome: A phrase that casts in political terms the expression, "your point of view depends on where you sit at the table."
9.14.2007 7:50pm
Henri LeCompte (mail):
Obviously, where and when somebody "crosses the line" is a subjective standard, but to me the Dworkin piece is the far more hostile and rhetorically extreme of the two. I mean, does he or does he not, explicitly state that Roberts and Alito are unprincipled, rightwing religo-crats who are out to undermine (if not destroy) the Constitution?

The Wall Street piece accuses Schumer, Leahy, Reid, etc of being nasty partisans who "ran Gonzales out of town." Heck! I think even they would agree with that assessment.
9.14.2007 8:06pm
Pragmatist:
Hell, I think even you might agree he'd done enough to be run out of town for.
9.14.2007 8:10pm
LM (mail):
OrinKerr

Someone can have a very partisan background and yet become an independent and outstanding AG.

That doesn't make it a smart bet that he will.
9.14.2007 9:03pm
Mark Field (mail):

Someone can have a very partisan background and yet become an independent and outstanding AG.


It's been years since I read the book, but I still remember Catherine Drinker Bowen's line about Edward Coke: that the worst of attorneys general became the greatest of chief justices. I think Ted Olson would be a terrible choice for AG, but it can happen.
9.14.2007 10:24pm
Charlie (Colorado) (mail):
Guys, could someone remind of the Constitutional Amendment that made the Attorney General the head of an independent branch of the government, instead of part of the Executive? I mean, I'm not a lawyer and all, but I seem to recall that the previous administration had a clear partisan as the AG ... even that there were several independent counsels appointed because the AG has a conflict, working for the President and all.

So since when is the AG supposed to be independent and non-partisan?

Obviously, something changed, and I missed it.
9.15.2007 12:51am
OrinKerr:
Charlie (Colorado),

Your comment is odd on several fronts. First, no one is making the suggestion you say they are. I realize it's fun to use sarcasm, and it probably makes you feel great, but it has no apparent connection to the discussion we are having. Second, Janet Reno was not a "clear partisan." She disliked the President and he disliked her, and she was quite independent of him. You can say that this state of affairs was lamentable, and that you would have preferred it if Reno had been a Clinton loyalist, but I don't think you can say that she was.
9.15.2007 12:58am