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Justice Souter and Accidents of History:

What do I say about Justice Souter (I'm sure you were on the edge of your seats)? I have little to say about Justice Souter, actually. But since Souter is now departing from the scene I bless you with a little pet theory of mine.

Every once in awhile, through pure accident of history, an individual rises to a position of fame and responsibility in American society for which he has no business rising and for which he or she simply lacked the experience and mental fortitude to cope. In my lifetime, I can think of three such people: Dan Quayle, Janet Reno, and David Souter. There may be others--feel free to nominate your own.

Quayle, Reno, and Souter were all pure accidents of history. Reno, as the third-choice Attorney General because of Bill Clinton's determination to choose a woman. Quayle, well for whatever reason, presumably because Bush wanted a "Jack Kemp-type" but not Jack Kemp, or whatever. And Souter, because as Jan Crawford Greenburg reports, there was no Plan B when Ken Starr got shot down internally.

Having said that, both Quayle and Souter seemed to do a competent job once they got into office. But then again, how would one tell if a VP were incompetent--except, of course, other than creating a public panic over riding the subway. Quayle's was sort of a benign incompetence.

In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge's proper role was. Bill Stuntz had a great essay on Powell and O'Connor that I think applies to Souter as well (the link to the original article is broken, but Orin excerpted the key paragraphs here). In that sense, he was similar to Sandra Day O'Connor, a potential "accident of history" contender as well because of Reagan's campaign promise. In my opinion, she too was one of the more mediocre Justice of recent times.

In the end, I don't think that anyone would champion Souter as a anything other than a mediocre Justice. It is hard to measure how "good" a Justice is--one could imagine many different criteria: smarts, influence, coalition-building skills, etc. No matter what criteria one uses, however, doesn't it seem to be the consensus that Souter is certainly near the bottom, if not at the bottom, of the current Court? Perhaps this is an unusually talented Court. But still, Souter is by any measure a weak link on the Court most would think.

Reno, by contrast, was a real menace and her elevation by accident of history was, I think, by most accounts a disaster. Her utter lack of qualifications and temperament for the job left her completely dependent on the Clintons' patronage so she feared above all being fired and returned to obscurity.

What does this say? Not much, I reckon, other than I hope that whoever Obama picks to fill Souter's seat, it will be someone chosen by design and not a panicked elevation by accident of history.

While I have your attention, I'd like to point you to Tom Smith's witty take, "I would like to like Justice Souter". I don't discern any disagreement from Tom about Souter's essential mediocrity.

Related Posts (on one page):

  1. A Different Take on Justice Souter:
  2. Justice Souter and Accidents of History:
Randy R. (mail):
Why, I think I will indeed take you up and offer my own nominations: George W. Bush is a leading candidate. He is mediocrity with a capital M!

Others include most congressmen and senators -- they are just too numerous to mention. Also, we must include Joe the Plumber.

But I like the theory, and I think it applies to Souter. I'm not sure he ever even wanted the job in the first place.
5.4.2009 5:03pm
Houston Lawyer:
Biden has already stuck his foot in his own mouth more than Dan Quayle did during his entire tenure as VP. During the term of Bush Pere, if you were an up and coming conservative type, you went to work for Quayle because his office was open to people with ideas. Sure, he was outmatched by Lloyd Bentsen in that debate, but that could have happened to any younger pol.
5.4.2009 5:05pm
A Law Dawg:
Without being snarky I genuinely proffer Sarah Palin to join those ranks.

Michael "Brownie" Brown as well.
5.4.2009 5:06pm
Perseus (mail):
I'll anticipate the "hopeless, hysterical hypochondriacs" of the Left who will nominate Alberto Gonzales as the Republican equivalent of Janet Reno.
5.4.2009 5:07pm
ruuffles (mail) (www):

Without being snarky I genuinely proffer Sarah Palin to join those ranks.

Why did she get famous? Because McCain chose her. Why did he choose her? Because of Obama. Why was Obama the D's nominee? Because Gore and Kerry lost close elections. Had either won, Obama would still be a senator.
5.4.2009 5:08pm
MartyA:
Humpf! Janet Reno was, after all, the Butcher of Waco.

Shouldn't John Kerry be there with Janet?
5.4.2009 5:11pm
Anderson (mail):
his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge's proper role was

What does this mean?
5.4.2009 5:12pm
Volokh Groupie:
Yeah, I'll nominate both our current and past president to that list.

Also Ilya Somin, but that's mostly because he's the outspoken red sox fan on this blog.


I do think there should be a distinction between being an unprepared but elected accident as opposed an appointed one.
5.4.2009 5:12pm
dearieme:
When did "mediocre" come to mean lousy, hopeless, poor? Did it happen under the influence of Sports Commentators, the poets of our time?
5.4.2009 5:14pm
BRM:
Perhaps Souter was a plodding mediocrity.
5.4.2009 5:16pm
Volokh Groupie:
The criteria is fame AND responsibility so Joe the Plumber wouldn't qualify in my opinion. Unless you consider correspondent for some right wing news blog a position of high responsibility.

That does remind me though that a good chunk of those hired into old media offices (the times/post/wsj/etc) also qualify here.
5.4.2009 5:16pm
Gabriel McCall (mail):
Mediocre is fine when it's bringing you your nachos and beer. We hope for better than mediocrity (literally, "halfway up a mountain") from the people we choose to wield vast power over the lives of many millions of people.
5.4.2009 5:21pm
dmv (mail):
Given the criteria listed for what makes a "good justice," I'm wondering where exactly Thomas falls. He's gotta be pretty competitive with Souter on any of the criteria mentioned.
5.4.2009 5:22pm
Brownie You're Doing A Heck Of A Job!:
You can only think of three political violations of the Peter Principle? C'mon, you're clearly not trying hard enough (and that's without even considering the scores of such examples currently infesting the Halls of Congress). A few quick possibilities for your consideration:

How 'bout Samuel Pierce? Remember him? Reagan's HUD Secretary for 8 years? The fellow Reagan didn't even recognize at a White House reception?

Jimmy Carter? Res Ipsa Loquitur...

And just to be bipartisan in picking on Attorneys General, since you brought up Janet Reno - Where would you put John Mitchell, Richard Kleindienst, Ed Meese and/or Alberto Gonzalez on the list?

And to really tick off some people here, don't forget that in an alternate electoral universe, Sarah Palin could have been a contender. But instead Joe Biden gets a turn at bat in this particular game...
5.4.2009 5:22pm
A Law Dawg:
Why did she get famous? Because McCain chose her. Why did he choose her? Because of Obama. Why was Obama the D's nominee? Because Gore and Kerry lost close elections. Had either won, Obama would still be a senator.


I think being elected (which Obama was) instead of hand-picked (which Palin was, for the VP slot) is more of what Todd is going for here.

Besides, Obama can't possibly be judged yet as his term is only beginning.
5.4.2009 5:23pm
Anderson (mail):
I continue to be puzzled.

It is hard to measure how "good" a Justice is--one could imagine many different criteria: smarts, influence, coalition-building skills, etc.

What about "deciding cases accurately on the law and the facts"?

That seems not to be a serious aspect of judging, according to Prof. Z's post.
5.4.2009 5:25pm
Pendulum (mail):
In terms of my preferred policy outcomes, Souter is at the top. Of the liberal justices, he has the most expansive view of free speech and 4th Amendment rights. As to economic rights, Souter is marginally more likely to side with business than the other court liberals.

As to his judicial acumen, I lack sufficient knowledge to form an opinion.
5.4.2009 5:25pm
zippypinhead:
I do think there should be a distinction between being an unprepared but elected accident as opposed an appointed one.
Stop being so mean to appointed accident Gerald Ford! If it hadn't been for Chevy Chase's SNL imitations, he might have done OK...
5.4.2009 5:26pm
Pro Natura (mail):
It's worth remembering that Janet Reno came to Hillary Clinton's attention because of Reno's spirited campaign against ritual (satanic?) abuse of children. Reno managed to put a lot of innocent people away during those witch hunts of her salad days in Florida.

For denizens of Massachusetts it's doubly worth mentioning because one of those who currently appears to be jockeying for a gubernatorial run is Martha Coakely who still insists against all evidence to the contrary that she successfuly prosecuted a ring of ritual child abusers. -- The fiends were even sacrificing dinosaurs to Satan according to some testimony that was admitted at trial!
5.4.2009 5:26pm
I like me a limerick:
There once was a man from New Hampshire,
met with conservative fanfare;
after no years of imports,
except that vote to abort;
he disappeared back to his man lair.
5.4.2009 5:26pm
rosetta's stones:

I read in the New York Times that Souter likes to go on long walks in the forest at night with his flashlight. Law imitates life, I guess.


OK, it's feint praise, but nobody lays the smackdown like lawyers!


But what I cannot, not forgive, for it is not mine to judge, but let's say, miss, are the opinions that will no longer be written upon the departure of Justice Souter from our loftiest court. I offer Exhibit 1, the majority opinion in Virginia Bankshares. It holds that, well, never mind. I am so over trying to explain what it holds. It is a long, tortured expedition to a deeply baffling place. It is the jurisprudential equivalent of a short story by Robert Aickman, except that Souter opinions are much longer. No, not like an Aickman short story; like being a character in an Aickman short story.
5.4.2009 5:28pm
Uh_Clem (mail):
Anderson: What does this mean?

I don't know. It appears to be content-free criticism as far as I can see. The sort of thing one would expect from the truly mediocre.

If a freshman turned in an essay with the following:


"In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge's proper role was."


surely the TA would write something in the margin about needing to provide some supporting evidence.
5.4.2009 5:28pm
ruuffles (mail) (www):

I think being elected (which Obama was) instead of hand-picked (which Palin was, for the VP slot) is more of what Todd is going for here.

Sorry , in my head I was thinking "if Palin was elected President then its because..."
5.4.2009 5:29pm
dmv (mail):

What about "deciding cases accurately on the law and the facts"?

Well, by that criterion, Thomas is certainly a cellar-dweller.
5.4.2009 5:32pm
Hauk (mail):
Besides, Obama can't possibly be judged yet as his term is only beginning.

Not that's stopping anyone from trying.
5.4.2009 5:32pm
Uh_Clem (mail):
OK, it's feint praise...

As in "that was a really good head fake" ?
5.4.2009 5:33pm
Guest poster (mail):
This is a really ridiculous analysis. At oral argument, Justice Souter was easily the most trenchant questioner on the Court, perhaps tied with Justice Scalia. If you read oral arguments consistently, you will seriously come to the conclusion that he is a legal genius. His opinions have an understated style and are not filled with flashy writing and accusations of other judges being lawless, or whatever, but they are quite trenchant -- I think they are the best of any of the Court's liberal justices. I am sorry you are upset that Justice Souter turned out to be liberal, but that doesn't make him mediocre.
5.4.2009 5:33pm
Allan (mail):
Albert Gonzalez?
5.4.2009 5:40pm
David M. Nieporent (www):
If a freshman turned in an essay with the following:
"In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge's proper role was."
surely the TA would write something in the margin about needing to provide some supporting evidence.
And if a surgeon picked up a gun and shot a lot of people, we'd probably arrest him, but that doesn't mean we'd do the same for a U.S. Marine. See, context matters. And a student submitting a paper for a grade really is an entirely different context than a professor (or anyone else) putting up a blog post.
5.4.2009 5:41pm
guest (mail):
1) How did Gonzo not make your list?
2) The argument here (if you can call it that) is really unconvincing.
5.4.2009 5:41pm
SDProsecutor:
<i>It is a long, tortured expedition to a deeply baffling place.</i>

Say what you will about the analysis, this is a fantastic turn of phrase!
5.4.2009 5:42pm
rosetta's stones:


OK, it's feint praise...




As in "that was a really good head fake" ?


No, as in feigned or assumed praise. You didn't seriously expect me to praise lawyers, did you?

But that was a pretty good smackdown.

Don't know if Souter was any good as a judge, but he didn't make himself a spectacle, not to the general public, anyway. That should count. And he gets extra points for leaving on his own, and not on a gurney like the rest of these old sarcophoguses do.
5.4.2009 5:44pm
Guest poster (mail):
I also think Justice O'Connor will go down in history as an excellent Justice. Her writing style was not very good and many of her opinions were very confusing. But I find her pragmatism and moderation very appealing and I think she typically had very good instincts in her decisionmaking; and in the long run that is what matters. I think she will go down as a much better Justice than, say, Chief Justice Roberts, who is a good writer but views the world in such relentless ideological terms.
5.4.2009 5:45pm
Anderson (mail):
Perhaps Mr. Nieporent can interpret Prof. Zywicki for us, then.

What does Souter's "inability to carry the weight of the Supreme Court robe" refer to? I am assuming it's not a fashion statement.

Near as I can tell, the complaint is that Souter spent his time doing his job.
5.4.2009 5:47pm
BooBerry (mail):
What a joke of a post. Todd Zywicki provides no evidence for his assertion that Souter is incompetent and clueless about what a judge's role is. In fact, Souter has espoused and maintained a fairly coherent conservative (not in the political sense) judicial philosophy. See Jeff Rosen's '93 article in The New Republic and Jeff Toobin's The Nine.

I don't know any attorney who believes that either, say, Thomas or Kennedy, has anywhere close to the intellectual heft of Souter.
5.4.2009 5:48pm
Cecilius:
Although I'm certainly no fan of Justice Souter's and will not defend him from any of Prof. Zywicki's criticisms, I'm inclined to wait awhile before pronouncing Justice Souter an intellectual dead weight on the Court. It's not unusual for historians to dig through the debris of a prior generation, such as the internal papers of Justice Souter and his colleagues, and present a view of a public figure at odds with their contemporary image. As with Presidents, I think that it's difficult to fully understand a Supreme Court Justice's worth until some time has passed.
5.4.2009 5:48pm
levisbaby:
That fact that you would put Souter on that list and not Clarence Thomas speaks volumes about your credibility.
5.4.2009 5:48pm
Uh_Clem (mail):
Mr. Nieporent,

Context of course does matter. But if Prof Z wants to change anyone's opinion he has to do better than vacuous cheerleading.
5.4.2009 5:49pm
Anderson (mail):
And while I don't have time at the moment to read Virginia Bankshares, it seems that whatever Souter did wrong, he did with the approval of Rehnquist, Scalia, White, and O'Connor, and the disapproval of Marshall, Blackmun, Stevens, and Kennedy.
5.4.2009 5:50pm
Soronel Haetir (mail):

I think she will go down as a much better Justice than, say, Chief Justice Roberts, who is a good writer but views the world in such relentless
ideological terms.


The problem I have with this statement comes down to mealy mouthed balancing tests. Certainty in law is much more important IMO than good law or bad law. Being in the middle might let you make the decisions but it also leads away from clarity.

This is what I especially hate about cases like those generated from McCain-Fiengold.
5.4.2009 5:52pm
dmv (mail):
Anderson:

What does Souter's "inability to carry the weight of the Supreme Court robe" refer to? I am assuming it's not a fashion statement.

I dunno, Souter is a thin little stick of a man.
5.4.2009 5:54pm
Vermando (mail) (www):
On Justice Souter, perhaps he had the misfortune of being a non-partisan man in a very partisan age. I've known many people who, like guest post mentions, have admired both his questioning and his opinions, but that seems to get lost in our current methods of evaluation. Personally, I don't have a strong opinion, but I'd say that the quite partisan response in this thread increases support for this theory.

On the topic in general, I don't think we should count people who lost their elections - they weren't accidents of history, but inchoates, disasters that might have been but never were. This could even apply to vice-President Quayle, who thankfully, history never gave us a chance to see what he could do.

To keep things light, I'll throw out a name from sports: Kurt Rambis, who coached the Lakers with Shaq and Kobe Bryant before Phil Jackson arrived. Only named coach because he was around, everyone else had tried and failed, and people were able to talk themselves into him based on his playing days. Results were quite mediocre.

On the positive side: Joe Montana. He happened to be coming out when Bill Walsh was looking to institute his West Coast system and to be paired with some of the finest receivers the game has ever seen. Two years earlier or later and he might have been but a footnote in history.

Come to think of it this topic begins to seem a lot like Malcolm Gladwell's Outliers...
5.4.2009 5:54pm
rosetta's stones:

Her writing style was not very good and many of her opinions were very confusing.


You're being a little bit harsh. I thought her 25 year lifespan for affirmative action was very clear. We're in about year 6 or so on that, and then it goes away ----POOF---- like the roadrunner I guess. Can't get much clearer than that, can you?
5.4.2009 5:55pm
Blelvis:

And if a surgeon picked up a gun and shot a lot of people, we'd probably arrest him, but that doesn't mean we'd do the same for a U.S. Marine. See, context matters. And a student submitting a paper for a grade really is an entirely different context than a professor (or anyone else) putting up a blog post.

The weakness here is that you resort to reasoning by analogy when no such comparison is warranted. An unsupported assertion is unpersuasive irrespective of the forum.
5.4.2009 5:59pm
Zywicki (mail):
I thought about Gonzales, but I ended up excluding him not because he might be mediocre, but because he wasn't really an accident of history. He had served in several roles that made him a plausible candidate for AG (state court justice, White House Counsel, etc.). That's the sense in which I'd put him in a different category of perhaps poor in quality but not an accident of history that elevated him to a rank above his abilities.

Many elected officials easily meet this criteria as well.

On Thomas, I disagree with anyone who tries to put him in the same category as Souter. It just isn't plausible. It seems evident from the quality of their opinions. If that doesn't do it for you, read Jan Crawford Greenburg's book.
5.4.2009 6:00pm
A Law Dawg:
And he gets extra points for leaving on his own, and not on a gurney like the rest of these old sarcophoguses do.


Maybe I missed something. How many of the last 10 Justices to leave did so through death or incapacitation? Only one, that I know of (Rehnquist) though Douglas should count too.
5.4.2009 6:02pm
dmv (mail):

It just isn't plausible. It seems evident from the quality of their opinions. If that doesn't do it for you, read Jan Crawford Greenburg's book.

More penetrating analysis! The rigor devastates.
5.4.2009 6:04pm
Real American (mail):
Harriet Miers could've made the list, but everybody sobered up and she withdrew her name from the nomination and we got a real justice instead. thank goodness.
5.4.2009 6:05pm
East:
creating a public panic over riding the subway


I don't think anyone panicked. It's just Biden.
5.4.2009 6:05pm
A Law Dawg:
I don't think anyone panicked. It's just Biden.


I submit that because Biden made the remark, everybody knew it was OK to ride the subway.
5.4.2009 6:06pm
dmv (mail):

creating a public panic over riding the subway

I don't think anyone panicked. It's just Biden.

The best thing I saw about that was the title of a blog post (where escapes me, though): "Nobody Tell Joe Biden How Twitter Works"
5.4.2009 6:08pm
rosetta's stones:
ALD,

Thurgood was a shell physically when he left, or so I've read. And Rehnquist as you mention. Ginsburg has a form of cancer that's terminal and likely soon. White maybe you can give a pass to, but he could have moved on after 20 years or so, which would be good practice for any of these guys... 10 years service would be better. The nomination battles might have less intensity if these guys turned over more often, and everybody knew they'd be getting another kick at the can in short order.

Souter is leaving on his own terms, and in good health. I think he deserves mention for that, and I hope he writes and gives us his thinking on the matter, too.
5.4.2009 6:11pm
Erik Siegrist (mail) (www):
I don't think Gonzalez belongs on a list like that. I think he did the job Bush appointed him to do quite well...
5.4.2009 6:16pm
pintler:
If you rate harm done by lives lost, none of the people mentioned from the last few decades are in the race. I would nominate the first several of Lincoln's generals (although, perhaps, some of them might be disqualified for seeming qualified before being appointed).

LBJ at least deserves an honorable mention for not only failing to either win or punt in Vietnam, but picking the time of day for air raids in the oval office just takes the cake in 'Hot to not be an effective CinC'.


Re Gerry Ford: I never understood the jokes. What major mistakes did he make? It always seemed to me that he did a good job minding the store.
5.4.2009 6:16pm
Dilan Esper (mail) (www):
I don't bash on Thomas' intellect despite my disagreement with most of his judicial philosophy-- the man is clearly smart and gets a bum rap from a lot of people in that respect. He's dead wrong on a lot of things, but he's not dumb.

But neither is Souter. The reality is that Souter does a fine job questioning lawyers at oral argument and has authored some very important opinions. He doesn't try to be a public intellectual like Scalia or (to a lesser extent) Ginsburg does, but he obviously knows what he is doing.

The reality is that all 9 justices on the Supreme Court are sufficiently intelligent to do the job. And if this is all just a cover for ideology, I suppose you probably think that not even someone like Louis Brandeis was a good justice.
5.4.2009 6:18pm
Bretzky (mail):
To those nominating anyone elected to a position of power as a medicore accident: you cannot be accidentally elected to a position of power. You can be mediocre once there, but no election is "accidental".

Might I nominate Gen. Ambrose E. Burnside. Of course, he actually had the good sense to know that he couldn't do the job, but Lincoln really had no other choice but to pick him because he, at that time, had no one else to select to lead the Army of the Potomac. After the disaster at Fredericksburg, Burnside happily went west. Although he did acquit himself well as General of the Army of the Ohio. But there was fundamentally less pressure there than in the east.
5.4.2009 6:19pm
Uh_Clem (mail):
Re Gerry Ford: I never understood the jokes. What major mistakes did he make?

Pardon me, but I seem to have forgotten...
5.4.2009 6:20pm
Don Anon:

BRM:
Perhaps Souter was a plodding mediocrity.



Nice Cardozo reference, BRM. If Souter is a mediocrity, he certainly is the plodding kind--hard working, conscientious, and attentive to his role as a judge.

What more should we want?
5.4.2009 6:21pm
Erik Siegrist (mail) (www):
dmv, I think that Biden title was from Balloon Juice.
5.4.2009 6:21pm
levisbaby:
Anyone care to comment on what percentage of the words in a Thomas opinion are written by Thomas and not Thomas' clerks and then compare that percentage to Souter?

Which leads to another query: Is it better to be a competent if somewhat stolid Justice who produces almost every word in an opinion versus a marginally more competent Justice who cuts and pastes from clerk's work?
5.4.2009 6:22pm
levisbaby:

But then again, how would one tell if a VP were incompetent--except, of course, other than creating a public panic over riding the subway.

Would you happen to have link to a news story where there was public panic following Biden's remarks?
5.4.2009 6:23pm
Duffy Pratt (mail):
The post reminds me of a line from Catch 22 about Major Major Major Major: "Some men are born mediocre, some men strive for mediocrity, and some have mediocrity thrust upon them With Major Major Major it was all three."
5.4.2009 6:24pm
Uh_Clem (mail):
To those nominating anyone elected to a position of power as a medicore accident: you cannot be accidentally elected to a position of power.

I'd agree with that except for the position of Vice President. The Veep is basically an appointed position who takes office when the top of the ticket wins - that's not really the same as "elected". The only real difference between VP and an appointed position like the Secretary of Agriculture is that the VP is named in advance and doesn't have to be confirmed by the Senate.
5.4.2009 6:25pm
anomdebus (mail):
nb: mediocre does not necessarily mean incompetent. I usually take it to mean average or undistinguished. It is also relative to others in the same position, which for SC judges is pretty rarefied.
5.4.2009 6:30pm
Bretzky (mail):
Uh_Clem:

Agreed. Only I don't really consider the VP to be an elected position as such. We do not cast separate votes for Pres and VP and, unless the VP candidate is a total nut job, no one would not vote for a Presidential candidate based on the VP.

Which is ironic considering I didn't vote for McCain specifically because he picked Palin as his VP. Go figure.
5.4.2009 6:34pm
rosetta's stones:
Continuing with the sports theme mentioned above, I nominate Matt Millen as the most incompetent accident of history so far this century.
5.4.2009 6:37pm
Visitor Again:
It crossed my mind that one of the reasons Souter might be glad to get out of town is that he won't have nonenities like Zywicki slinging shots at him. But, on second thought, I don't think Souter cares what Zywicki thinks of him. And that's one of the qualities that makes him a good man to have around, both on the Court and in life.
5.4.2009 6:43pm
James Gibson (mail):

There may be others--feel free to nominate your own.

Lets see, The head of the daily Kos (created by John Dean), Ariana Huffington (created by divorce, assisted by the DNC), Michael Moore (created by the UAW), Perez Hilton (god only knows).
5.4.2009 6:48pm
ray_g:
Lay off Kurt Rambis!!! Kurt Rambis performed the often unrecognized and unrewarded, but IMO sometimes very important role of 'Keeper of the Flame', i.e. keeping things together during a tough transition. In a more serious and important way, I would also say that Gerald Ford did the same thing. And I am grateful for how he handled that.

And while I am no fan of Dan Quayle, what 'proof' is there of his so-called incompetence, other than Democrats and the media constantly calling him that. And if you mention the 'potatoe' thing, subtract 50 points from your score. Have none of you (us) ever done something like that? If any slip, no matter how minor, labels someone stupid, then we all are.
5.4.2009 6:51pm
ruuffles (mail) (www):

It crossed my mind that one of the reasons Souter might be glad to get out of town is that he won't have nonenities like Zywicki slinging shots at him.

Both WAPO and SF Chronicle cited friends of Souter quoting him as saying (before the election) that if Obama won, he would retire. The quotes were buried in the middle of articles on Saturday.
5.4.2009 6:54pm
wm13:
I disagree with including Sarah Palin on this list, because she didn't in fact get elected Vice President. So she hasn't obtained a position of responsibility for which she is unprepared. And I have no thought that her qualifications or abilities are significantly below the average for governors of small states like Alaska.

Also, John Mitchell definitely does not belong on this list. He was a giant of public finance, at a time when that was a higher-paying area than it is now, and a leading power broker in New York politics. Think of Rodgin Cohen and Rahm Emanuel, combined.
5.4.2009 6:55pm
AF:
In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe.

Apparently Professor Zywicki is a self-hating crappy writer.
5.4.2009 7:15pm
Julius C.:

I thought about Gonzales, but I ended up excluding him not because he might be mediocre, but because he wasn't really an accident of history. He had served in several roles that made him a plausible candidate for AG (state court justice, White House Counsel, etc.).


Wow, prosecutors of major, crime-ridden metropolitan areas lack the qualifications to be the nation's highest law enforcement officer, but Gonzo's bona fides aren't impeachable? How many cases did Gonzo prosecute? Gonzo's rise was built on a series of accidents man initiated by one man. Tellingly, no law firm wants anything to do with him.

If we are going to speculate on the undistinguished who failed to rise to the responsibility and expectations of a position, how about starting with those that clearly collapsed under the weight of the circumstances. Tom Daschle and Dennis Hastart comes to mind, but Miers and Gonzales are gimmes.

Can we go back to the Dartmouth saga?
5.4.2009 7:19pm
A Law Dawg:
I disagree with including Sarah Palin on this list, because she didn't in fact get elected Vice President. So she hasn't obtained a position of responsibility for which she is unprepared.


She had a responsibility to make the ticket more respectable, and she failed. I say this as somebody who started off as a McCain voter.
5.4.2009 7:34pm
Bill Harshaw (mail) (www):
A trivia question--how many Justices were Rhodes scholars? Is Souter the only one?
5.4.2009 7:36pm
DiversityHire:
...the 'potatoe' thing...

Thank god for interactive spell-check else I'd type "potatoe" more often than not.

A good deal of everything is more accidental than we're comfortable admitting.
5.4.2009 7:44pm
xboxdood (mail):
Rhodes Scholarships are NOT prestigious. You have to have athletics on your resume, which auto-dings the smartest of the smart.

I always lulz when people debate the relative intelligence of jurists. While a minimum intelligence is certainly necessary to be an effective judge, after a certain point it becomes irrelevant. Other traits are far more important after that point.

Let's face it - very few in the legal world (even at the highest echelons - Yale Law or SCOTUS) can touch a Fields medalist or even the average math or physics PhD in terms of raw intellect. Posner, Scalie, et al couldn't hold a candle to many of the professional mathematicians or scientists I know in terms of "wowing" you with intellectual acuity.
5.4.2009 7:47pm
OrinKerr:
A trivia question--how many Justices were Rhodes scholars? Is Souter the only one?

Harlan II, too.
5.4.2009 8:17pm
Noman:
Breyer was a Marshall Scholar; I know they are not the same thing.
5.4.2009 8:27pm
Kirk:
"Nobody Tell Joe Biden How Twitter Works"
Huh??? With its 160-character limit, I think Twitter is completely safe from Biden.
5.4.2009 8:37pm
Anderson (mail):
He never really seemed to have any coherent idea of what the judge's proper role was.

Really?

Cue Justice Souter:

"We can't have a single philosophy. The most dangerous thing in the world is to have a judicial philosophy. And the reason is there's no one philosophical system, at least in my experience, for the interpretation of statutes--and God knows, for the American Constitution--that is going to be able to work regardless of all circumstances."

Souter, a Bush 41 appointee whose middle-to-left leaning jurisprudence ultimately disappointed many conservatives, went on to chide those with absolutist views:

"Take the recently popular view (in my judgment a legitimate view subject to limitations) that the Constitution must be read with some reference to original meaning. As long as you don't engage in crude psychological fallacies about what you're getting at by original meaning, I think there is enormous value in that philosophy. But one has to be willing to admit there are circumstances, there are questions, for which there are simply no materials that would shed any light on original understanding. And if you committed your entire sense of legitimacy to the notion that the answer has got to come from this original understanding ... you will find some way to put (that philosophy) into practice, whether you have legitimate premises for it or not."

David Souter: insufficiently ideological to be a great justice!
5.4.2009 9:03pm
cmr:
I will say I get were Zywicki is coming from. Souter does seem to be something of a cipher. He's kind of a cipher of a man; no wife, no kids, quiet.

I'd nominate Bush's entire administration and Obama as accidents of history. Bush himself wasn't that bad (he wasn't); what made him bad was his rigid ideology, bad fiscal policy, and his political hack appointments. As a whole, he just looked incompetent.

I'll also add Obama.
5.4.2009 9:14pm
Jon Roland (mail) (www):
When I went to Washington, DC, to lobby for several causes in the 1970-72 timeframe, I soon became negatively impressed by the low level of intellect of almost everyone I encountered there in positions of power. I soon became aware of how that happened. It was particularly revealed in a conversation between two "intelligence" types, in which the question came up of why some particularly qualified person had not been elevated. The reply was "Because we couldn't control him." There is a screening process at work to exclude talented people.

Janet Reno provides an instructive example. Clinton first proposed Zoe Baird, but the FBI "discovered" she had a "nanny tax" problem, something that the IRS had apparently overlooked, or preferred to file away for use at the right time. Then Clinton tried Kimba Wood, with the same result. Then he tried Janet Reno, and she "passed". But was that because she was clean? No. She had been the point person in the vote fraud that was perpetrated in the 1970 Florida congressional election (and presumably other elections), documented in Votescam, by James and Kenneth Collier, which, incidentally, also documents the key roles of Antonin Scalia and Ruth Bader Ginsburg at an earlier point in their careers.

So, the way things really work, barring some accident, no one gets to a position of power at any level of government in the United States unless the Establishment and their minions have something on them that can be used to control them. That isn't taught in college courses in government.
5.4.2009 9:15pm
A student of law and history (mail):
Justice Thomas fits all these signs of mediocrity and then some. He was nominated for 1 reason, and it was not even a judicial qualification.

Souter was certainly smart, though he lacked the temperament and interpersonal skills. At least he wanted to get out of town.

The saddest part of the process is a talented justice such as Scalia would probably never get the job today. "We" (Congress and both parties) prefer mediocrity and soothing voice (If you listen to Justice Roberts talk outside of the courtroom he never says anything of interest or substance) over a talented Justice.
5.4.2009 9:27pm
Hauk (mail):
Rhodes Scholarships are NOT prestigious. You have to have athletics on your resume, which auto-dings the smartest of the smart.

Yup, because truly smart people are never good at athletics. Never.
5.4.2009 9:27pm
Dilan Esper (mail) (www):
If you listen to Justice Roberts talk outside of the courtroom he never says anything of interest or substance

Except when fouling up the Presidential Oath of Office.
5.4.2009 9:30pm
trad and anon (mail):
In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe.

By which you mean what?
He never really seemed to have any coherent idea of what the judge's proper role was.

He didn't? How do you know this?

This has got to be the most content-free criticism of a Supreme Court Justice I've ever read. Even calling his haircut terrible would have more substance to it.
5.4.2009 11:36pm
Tugh (mail):
What a nasty, analysis-free, ideological post. It is driven by ideological animus towards Justice Souter and perhaps, resentment that he didn't turn out to be a far right conservative. Professor Zywicki really brings down the quality and caliber of this great site.
5.4.2009 11:52pm
Psalm91 (mail):
xboxdood:

You need to stop watching "Numbers".
5.5.2009 1:03am
Suzy (mail):
I'm a huge fan of Justice Souter's independence, acuity, and careful reasoning. I have disagreed with many of his decisions, Kelo being perhaps the most significant. (Though I will say the reaction to Souter after that case from his political opponents was disgusting and undeserved.) However, his decisions on first amendment and religion issues have been incredibly instructive and subtle. This post was a silly and unsupported attack, and it's embarrassing.
5.5.2009 1:11am
Cornellian (mail):
To those nominating anyone elected to a position of power as a medicore accident: you cannot be accidentally elected to a position of power. You can be mediocre once there, but no election is "accidental".

I'd suggest Jean Carnahan election to the senate as an accidental election. Mel Carnahan was elected to the Senate despite having died 3 weeks before election day (too late to remove his name from the ballot), leading to Jean Carnahan, his widow, being appointed senator in his place, as the governor had promised the voters he would do if Mel won the election. You could argue the voters were trying to choose Jean when they were actually voting for Mel, but to me this election is about as accidental as they get.
5.5.2009 1:31am
Leo Marvin (mail):

In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe.

and in my opinion pizza and oral sex are over-rated.

Take that seriously.
5.5.2009 2:01am
Leo Marvin (mail):

Joe Montana. He happened to be coming out when Bill Walsh was looking to institute his West Coast system and to be paired with some of the finest receivers the game has ever seen. Two years earlier or later and he might have been but a footnote in history.

In other words, David Souter is the Joe Montana of Supreme Court Justices? Works for me.
5.5.2009 2:02am
josil (mail):
For people with a sense of history, they will either recall or can discover that Harry Truman was thought to be a mediocity by an overwhelming majority when he ascended to the presidency, and certainly by the intellectuals of that time. The sneering was much like that directed toward Reagan when he first ran for office. Intellectuals and their followers tend to overvalue intelligence and undervalue integrity and character.
5.5.2009 2:34am
NickM (mail) (www):
Alberto Gonzales was repeatedly appointed to positions by GW Bush. That's not an accident of history. That term refers to someone who once ended up in the right place at the right time without anything really having suggested him for the post.

IMO about the only way to be elected to a position and be an accident of history is to be the beneficiary of wholly unexpected circumstances that hand you the election when you previously weren't a serious candidate. Tim Mahoney, running for Congress in FL in 2006, is a good example. So was Mike Flanagan, challenging Dan Rostenkowski in 1994.

Nick
5.5.2009 2:36am
Thalia (mail):
Mr. Zywicki, your criticism of Souter and O'Connor says more about you than about them. Souter (magna cum laude from Harvard and Rhodes scholar) had a distinguished career as a jurist prior to being appointed to the Supreme Court. O'Connor (3rd in her class at Stanford Law) served as AG, as well as judge prior to being appointed. Both proved prior to their appointment that they were well suited.

It's pretty obvious you have an axe to grind against principled jurists who were appointed by Republicans but did not consistently vote along your preferred ideological lines. For shame. Souter's credentials beat yours by miles.
5.5.2009 5:03am
Dogpile!:
This analysis is too flimsy to bear the weight of the jock strap that Souter wears under his robe.
5.5.2009 9:26am
a guest who is posting on the volokh conspiracy blog (mail):
In the history of wrong blog posts, this is the wrongest of the elite cadre of most wrong wrong-wreakings that has ever wronged the face of the internet. Tremendous work.
5.5.2009 10:09am
ac:
The problem really is the political litmus tests. You can either have brilliant minds on the Court -- who don't tend to think inside boxes unless their entire raison d'etre is thinking of brilliant ways to make things fit inside his politics, like Justice Scalia -- or you can have justices you think are politically safe. Justice Souter turned out to be more liberal than expected, but the fact is he was appointed not for his intellectual abilities but because he was believed to be a politically safe pick. Same with Justice O'Connor. Don't get me wrong, they were both plenty smart, but they did not have the incandescence or the terrific gut instincts of justices like Brennan, T. Marshall, and even Ginsburg and Scalia (though I hate to admit it because I find him totally disingenuous).
5.5.2009 10:35am
Hovsep Joseph (mail):
"creating a public panic over riding the subway"

There was a public panic? I missed that.
5.5.2009 11:08am
geokstr (mail):

Thalia:
It's pretty obvious you have an axe to grind against principled jurists who were appointed by Republicans but did not consistently vote along your preferred ideological lines. For shame. Souter's credentials beat yours by miles.

Perhaps. But I'm still waiting for that "principled jurist" who does not vote along the "preferred ideological lines" of the Democrat who appoints him/her. Can you imagine in any universe a Democratic appointee to the SCOTUS who suddenly and unexpectedly votes to overturn Roe?

It's pretty much not an issue that a Democrat will be pro-choice, despite the so-called "big tent", but you never can tell about those evil Republicans, who although they may look a lot more alike than Democrats, sometimes have independent thoughts. (At which time the left will claim they have "grown" (groan).)

I was never nearly good enough to be a professional basketball player, but I did play high school ball and know something of the game. I don't think that my meager background in exactly the same circumstancs as Kobe Bryant would preclude me from making accurate criticisms of his game.

Heck, Keith Olbermann has zero direct knowledge of just about anything, but that hasn't stopped him from (often dishonestly) declaring a new rightwing bogeyman the "Worst Person in the World" every night, now has it? Nobody on his side of the aisle ever calls him on it either.
5.5.2009 11:12am
geokstr (mail):

josil:
For people with a sense of history, they will either recall or can discover that Harry Truman was thought to be a mediocity by an overwhelming majority when he ascended to the presidency, and certainly by the intellectuals of that time. The sneering was much like that directed toward Reagan when he first ran for office. Intellectuals and their followers tend to overvalue intelligence and undervalue integrity and character.

Don't kid yourself for an instant. Following the comments in this blog for just a short while can easily prove that the same people who sneered at Reagan 30 years ago sneer at him even more now. Left and right have totally different, and generally mutually exclusive, definitions of exactly what integrity and character are, let alone how much to value them.
5.5.2009 11:19am
Gordo:
Maybe if I were a right-wing libertarian absolutist, Sandra Day O'Connor would have been a mediocre justice.

But, since I have some common sense, in fact Justice O'Connor was the greatest justice on the court during her tenure. The only decision she made that I have any serious doubts about is Stenberg v. Carhart, and I can certainly understand her decision on that one given her position on the issue.

The Supreme Court needs more O'Connors and fewer Scalias.
5.5.2009 12:07pm
Snaphappy:

I'm still waiting for that "principled jurist" who does not vote along the "preferred ideological lines" of the Democrat who appoints him/her.



Byron White

(appointed by Kennedy, dissented in Roe)
5.5.2009 12:36pm
DCP:
I think the alltime champion for this discussion might be Warren G. Harding - an unknown newspaper publisher who somehow became President at a pivotal moment in our nation's history and didn't exactly rise to the task (though some of the attacks on his presidency are unfair).

Also, when I read this post, I couldn't help but think of the scene from the movie Casin-o when Joe Pesci is narrating how the mob had to find a legitimate guy to stand in as the head of the casin-o they had bought and they got some guy ("who the f--- knows where they found this guy") with $100 to his name, or something along those lines.
5.5.2009 1:11pm
B.A. Baracus (mail):
Snaphappy,

It is by no means clear that JFK was himself pro-choice, regardless of the position his party has taken.
5.5.2009 1:12pm
dll111:

OrinKerr:
A trivia question—how many Justices were Rhodes scholars? Is Souter the only one?

Harlan II, too.


Byron White was a Rhodes Scholar as well.
5.5.2009 1:48pm
dll111:

Perhaps. But I'm still waiting for that "principled jurist" who does not vote along the "preferred ideological lines" of the Democrat who appoints him/her. Can you imagine in any universe a Democratic appointee to the SCOTUS who suddenly and unexpectedly votes to overturn Roe?


2 of the last 14 Justices were appointed by Democrats. It jumps from Lyndon Johnson (Marshall and Fortas) to Bill Clinton (Ginsburg and Breyer). It's not exactly a huge data sample. Thee Democrat appointees decided Roe v. Wade, with Marshall and Douglas for and White against. Since then, only 2 Democrat appointees have even had the chance to decide the issue.

And honestly, could you imagine today a Republican appointee to SCOTUS that would vote to uphold Roe v. Wade? The times of Stevens, Souters, and Kennedys are over. The conservative legal movement knows what it's doing now.
5.5.2009 2:03pm
geokstr (mail):

Snaphappy:

I'm still waiting for that "principled jurist" who does not vote along the "preferred ideological lines" of the Democrat who appoints him/her.

Byron White
(appointed by Kennedy, dissented in Roe)

I should have limited that to recent history. The Democratic party actually had "diversity" of thought and ideas back then. Nowadays "diversity" only means that any random group of people has to look like the bar scene in Star Wars, not that, heaven forbid, they should actually have different ideas.

There are lots of Republicans who are pro-choice, or at least not anti-abortion, pro-SSM, anti-Iraq war, pro-amnesty, etc. Where are such divisions from major tenets of leftist orthodoxy in the Democratic Party? But you tell us that the right, by trying to "purify" ourselves philosophically, we are limiting our appeal to the middle when in fact that is exactly what the Democrats have done over the last couple decades.

I suspect we'll find out in the next couple years about how much the moderates who decided the election think that furiously moving to the left is the "change" they voted for.
5.5.2009 2:37pm
dll111:
It seems clear that Professor Zywicki has a great animus towards Justice Souter simply because he is a New Hampshire native who spurned Zywicki's beloved Dartmouth for Harvard.
5.5.2009 2:58pm
Snaphappy:


Byron White
(appointed by Kennedy, dissented in Roe)

I should have limited that to recent history


As noted, the sample size is pretty small.


There are lots of Republicans who are pro-choice, or at least not anti-abortion, pro-SSM, anti-Iraq war, pro-amnesty, etc. Where are such divisions from major tenets of leftist orthodoxy in the Democratic Party?


Huh? How about all over the place? Ever hear of blue dog Democrats? Plenty of Democrats initially supported the Iraq war based on the Bush administration's assurances that there was an imminent threat (as did I). You might look to Democrats for Life America to find pro-life democrats, or perhaps to Democratic VP contender Tim Kaine. The Democrats still caucus with Joe Lieberman for goodness sake, who campaigned for McCain.
5.5.2009 3:14pm
wfjag:
Zywicki wrote:

I thought about Gonzales, but I ended up excluding him not because he might be mediocre, but because he wasn't really an accident of history. He had served in several roles that made him a plausible candidate for AG (state court justice, White House Counsel, etc.). That's the sense in which I'd put him in a different category of perhaps poor in quality but not an accident of history that elevated him to a rank above his abilities.

By this criteria, then former V.P. Quayle should not be on your list, but Pres. Obama should. Under your criteria, you looked at experience pre-national election or appointment to national office.

Quayle's pre-V.P. political career included defeating in 1976 the eight-term incumbent Democrat J. Edward Roush for election to the US House in the Indiana 4th District; reelection in 1978 by the greatest percentage margin ever achieved to that date in that district; election in 1980 at age 33 as Indiana's youngest US Senator by defeating defeating three-term incumbent Democrat Birch Bayh; reelection in 1986 with the largest margin ever achieved to that date by a candidate in a statewide Indiana race, although a number of other Republican US Senators elected in 1980 were defeated for reelection (so, he wasn't riding someone else's coattails).

However, in 1988, one of the questions posed by the press about Quayle was whether he had enough experience to be President. This question was raised repeatedly and in various ways throughout his time as V.P.

Contrast this with Pres. Obama -- an unremarkable (and virtually non-existant) record as a state Senator in Illinois, after being first elected by using legal challenges to disqualify all his opponents; being elected US Senator against Jack Ryan after scandals from Ryan's divorce were revealed when his divorce records were unsealed, forcing Ryan from the race, followed by a Republican candidate who wasn't even from Illinois; an unremarkable and short record as the junior US Senator from Illinois before election as President; his prior executive experience consisting of running the Chicago Annenberg Project, which spent $150 to $200 Million to achieve no meaningful results in terms of improving Chicago's public schools; association with a number of controversial persons including Rev. Wright and Prof. Ayers. However, in contrast to Quayle, of whom the press repeatedly questioned and criticized, the US press largely gave Obama a pass on his lack of experience and history, and his apparently inability to say a coherent sentence when he was not reading from a teleprompter.

Pres. Obama qualifies as an accident of history under your criteria. It is apparent that many members of the US news media undertook a deliberate and likely conscious effort to elect him President and avoided all questions as to his qualifications or stands on issues; his election occurred at a time when then-President Bush's poll numbers were so low as to only rival those of Congress; and during the campaign a huge financial crisis occurred and his opponent, Sen. McCain, managed to make himself look like a complete fool (by first "suspending" his campaign, promising to provide leadership, and then rolling over to support TARP -- thereby demonstrating neither leadership nor independence from Pres. Bush). An earlier "accident" of history was former Sen. Edwards being a major candidate in the Democrat Party caucuses in Iowa. Edwards' baby-daddy scandal wasn't picked up by the major US media until later -- only being the subject of investigation by the National Enquirer at that time. However, had Edwards not been a candidate, it is entirely possible that Sen. Clinton would have come in first in Iowa, and then-Sen. Obama would not have received the boost, national attention and funding that followed from his first place finish.

Accordingly, under your criteria, Pres. Obama should be listed as an accident of history, whereas former VP Quayle should not.

Whether Pres. Obama, as President, will prove to be a disaster, incompetent, competent or remarkable remains to be seen. However, your criteria for others allegedly was based on experience prior to election or appointment to a national office.
5.5.2009 3:48pm
chrismyco (mail):
O'connor was a terrible justice, she was more politician than justice. Her votes were often contridictory esp in the areas of federalism. Worth yet she never deciding anything, most of her opinions made no sense, or law, there were mostly balancing test, which required that every instance of the problem be litaged.

Souter is a pretty good justice. I would agree that he is somewhere in the middle of the justices.

Although i don't always agree with justice thomas, it's clear that one he is quite brillant, and two he writes his own opinions. his opinions are very ideosyncratic quite the opposite of justice, kennedy's and oconnors. Sure they are people who hate him, but there are those who love him. And when all is said and done,He will be remembered as one of the most revolutionary voices on the supreme court. of course whether there should be revolutionaries on the high court is another question.
5.5.2009 3:51pm
Leo Marvin (mail):
geokstr:

Heck, Keith Olbermann has zero direct knowledge of just about anything, but that hasn't stopped him from (often dishonestly) declaring a new rightwing bogeyman the "Worst Person in the World" every night, now has it?

Care to show us some proof of dishonesty? Not inaccuracy, but dishonesty?

Nobody on his side of the aisle ever calls him on it either.

I assume you've come to this conclusion by looking for liberal criticism of Olberman under the street light by your house. You can only get away with this sort of claim on a right wing site. It's like saying, "nobody on the right ever criticizes Bill O'Reilly." If you'd actually looked at some of the liberal sites where Olberman gets discussed you'd see he's about popular as Ann Coulter is here. Many love him, and many can't stand him. As a liberal in the latter category, I can tell you I have plenty of company in those arguments.
5.5.2009 4:42pm
DCP:

Pretty damning evidence from wfjag

I'm too young to remember much about Quale pre-1988, but it did strike me as odd that he made the top 3 in the OP, as I seemed to remember that he had a somewhat distinguished and notable legislative career before Bush I tapped him, even if he wasn't a preferred option for many. I guess the 'potatoe' gaffe, etc. has really hurt his legacy, even though, as pointed out in the OP, VPs really never do anything substantial anyway, nor are they really expected to.

And he's dead on about Obama. Has anyone ever coasted into the White House on such flimsy credentials and kid glove treatment from the media? If his Presidency is a failure (and I hope its not) the whole right place-right time-right smile manner in which he ascended to that high office will surely command a lot more scrutiny.
5.5.2009 4:46pm
Dilan Esper (mail) (www):
Can you imagine in any universe a Democratic appointee to the SCOTUS who suddenly and unexpectedly votes to overturn Roe?

Byron White?
5.5.2009 9:00pm
wfjag:
RE: Olberman, Leo Marvin wrote:

Care to show us some proof of dishonesty? Not inaccuracy, but dishonesty?

Fair question:


The producers,
Countdown,
MSNBC
On Wednesday 11 February 2009 you placed into the mouth of your presenter Keith Olbermann a grievously defamatory item concerning me. You named me the third of the day's "world's worst persons" and, among other things, accused me of dishonesty and "malfeasance" in connection with my work as a journalist for The Sunday Times of London. The item has been widely seen in the UK.
On the previous day, you broadcast a similarly defamatory item concerning Dr Andrew Wakefield, whose false claims of having found a possible link between a childhood vaccine and autism have been the subject of my investigations. Wakefield can no doubt deal with his own reputation. However, it's clear to me that, although I share your apparent general opinion of Wakefield, the item concerning him contained inaccuracies, and appeared to have been crudely lifted from my work, without any effort whatsoever on your part to check your facts, or to properly describe my findings. I think that by subsequently attacking me you believed that you could somehow mitigate your previous errors.
These two instances evidence your inability to deliver three daily targets for your "world's worst person" item, and you now resort to baselessly picking on people about whom you know little. It's clear to me that you do so in order to deliver entertaining defamations, at little cost to the programme, and in circumstances where you believe your victims will have no redress.
It is untrue that, as you say, I am the complainant against Wakefield in UK disciplinary hearings. I have ample correspondence to prove this. As a journalist with public as well as professional duties, I was approached almost five years ago by the UK doctors' regulator, the General Medical Council, and asked if I would supply them with my journalistic findings, post-publication, at that time concerning Wakefield. This I did, in a manner familiar to journalists, both in the UK and the US, in dealings with statutory regulators. There can be no possible issue about this, or any justifiable allegation of misconduct on my part. Nor could there be any justification for your suggestion that this would somehow disbar me from continuing my investigations into Wakefield's activities, or that I had improperly concealed my previous actions, or that my prior supply of journalistic findings invalidated findings reported last weekend which are not yet charges faced by Wakefield. Your item implied that, in reporting my new findings, I was somehow merely reporting my own prior allegations. This is utterly false, and grossly damaging to my reputation. To assist your employer to commercially profit by recklessly attacking me appears to have been your intent.
You were apparently supplied with your baseless allegations by a New York-based freelance journalist, David Kirby, who has made substantial sums of money through attacking childhood vaccines, and who is an advisor to Wakefield. Extraordinarily, you even supplied Kirby with a copy of the script of your attack on me, prior to broadcast, and thus appear to have acted in cahoots with him. Kirby was sufficiently motivated, and stupid, to publish your script on a website before the item was aired.
Your defamation of me has been taken up by others, and you are plainly responsible for this. You have no possible defence, since your claims are simply false. They were fabricated and placed with you by antivaccine campaigners and cranks. You can argue no privilege or free speech right to make such false allegations, not least since you published them with complete disregard for their truth or falsity. NBC's lawyers will no doubt explain to you the particular difficulties of such conduct in the UK jurisdiction.
I am presently travelling, and have no access to office facilities. I write to you via a junk antispam email address.
I look forward to your prompt response, and ask that you supply a copy of this email to your legal department.
I can presently be contacted at xxx-xxx-xxxx.
With best wishes,

Brian Deer


Letter republished in blog titled Brian Deer responds to Keith Olbermann, Feb. 11, 2009 on http://scienceblogs.com/insolence/

If you go to the blog and type "Olberman" in the search function, you'll find a lot more. Initially people thought that Olberman had been played a fool and attacked Deer because Olberman was merely showing his ass again by declaiming on a subject that he knew nothing about - something Olberman does with regularity. However, even after facts were shown to him, he continued.

I'm not sure if this is what you consider to be "dishonesty" -- some people limit that to knowingly telling falsehoods. My definition is a little broader, as I include repeating statements as fact when, but for willful ignorance, the speaker would know that the statements are not true, or certainly the facts are not as clear as the speaker claims.
5.6.2009 9:48am
Hal O'Brien (mail) (www):
"He never really seemed to have any coherent idea of what the judge's proper role was."


What does this mean?


From our translator-o-matic:

"I have a personal grudge against him that will sound petty if I say it out loud, so I'll just write something vague and hope no one notices I'm eliding past any criticism of substance."

Oops.
5.6.2009 3:35pm
Leo Marvin (mail):
wfjag,

Dishonesty implies an intention to deceive. Your definition may qualify, but in this case "willful ignorance" assumes the conclusion.
5.6.2009 6:12pm
wfjag:

but in this case "willful ignorance" assumes the conclusion.

I'm not sure I understand your point. In Olberman's attack on Brian Deer, the falsity of Olberman's statements was pointed out to him and evidence to which he had no rebuttal was also pointed out. Essentially what Olberman did was stick his fingers in his ears and say "NAH, NAH, NAH, I CAN'T HEAR YOU", and then repeat his attacks. That's what I meant by "willful ignorance."*

So, I don't think I assumed my conclusion. The evidence concerning Wakefield's misconduct is so strong that there's no room for disagreement about it having occurred. Olberman's assertions concerning Deer were also demonstrably false.

Accordingly, unlike most of his "Worst Person in the World", which are matters of opinion, the attack on Deer involved dishonesty. Olberman might not have realized the falsity of his assertions initially, but, only by willful ignorance did he fail to realize their falsity when he repeated them.


*Olberman is hardly the only pundit to do this, and it's not something seen only by progressives. Michael Savage is a master of the same technique. And, frankly, I don't pay attention to either one for this reason. Neither is worth the time to pay attention to, nor is either a credible source, nor is either worth the time or effort to argue about. Rather than getting mad about Olberman, ignore him. There's plenty of things to enjoy and you only have 24 hours in a day.
5.6.2009 6:41pm
Hal O'Brien (mail) (www):
wfjag: Mr. Olbermann's last name has been spelled correctly in this thread. It's easily findable, and searchable.

Are we to take it, then, by your own standard, that your consistent misspelling of his name is a case of you sticking your fingers in your ears and saying "NAH, NAH, NAH, I CAN'T HEAR YOU"? Is that what you mean by "willful ignorance"?

Or, as we say here in the Pacific Northwest, Don't pudge me, bro'.
5.6.2009 7:21pm
Hal O'Brien (mail) (www):
OK, to try to address this more substantively:

"I'm not sure I understand your point."

Yeah, I think we get that.

"In Olberman's attack on Brian Deer, the falsity of Olberman's statements was pointed out to him and evidence to which he had no rebuttal was also pointed out."

Perhaps, but not in a relevant way.

* Such "evidence" was produced after the fact.
* It may have gotten to his staff, but there's nothing to indicate it got to Olbermann personally.
* The statements you cite are assertions themselves. At least as far as you've shown, this is a classic "He said, she said."

"Essentially what Olberman did was stick his fingers in his ears and say "NAH, NAH, NAH, I CAN'T HEAR YOU", and then repeat his attacks. That's what I meant by "willful ignorance."

This assumes both that Olbermann saw the statements you've presented, and that he's as persuaded by them to the same degree you are.

"So, I don't think I assumed my conclusion."

Again, that much is clear.

"The evidence concerning Wakefield's misconduct is so strong that there's no room for disagreement about it having occurred."

Which Olbermann didn't, at least not in the pieces you've pointed to.

"Olberman's assertions concerning Deer were also demonstrably false."

So says Deer. He would, wouldn't he?

"Olberman might not have realized the falsity of his assertions initially, but, only by willful ignorance did he fail to realize their falsity when he repeated them."

* "Repeated them"? When? You've only shown the "Worst Persons" clip, and nothing subsequent to that.
* And, again, it may just be that he and Mr. Deer have a sincere disagreement as to what constitutes a conflict of interest.

If Deer has persuaded you, mazeltov. But you'd have to show that Deer also persuaded Olbermann, and that Olbermann then went ahead anyway. At least in what I've seen, you haven't done that. You just lashed out with a rhetorical allegation of lying because someone disagrees with you.

There's a writer in the PNW who goes by "pudge" who frequently does the same thing. Hence, like Mr. Boycott, he's become a verb.
5.6.2009 7:46pm
wfjag:
You're correct Hal, I can't "prove" according to you that Olbermann knew anything -- or that he'd read of any of the information that was readily available in the public domaine, including any of the NY Times articles from several years before he attacked Deer reporting that Wakefield's assertions were bogus -- and why -- or that Olbermann had hear or read the report of the National Academies of Sciences Institute of Medicine that dismembered Wakefield's assertsions, as well as the other vaccines cause autism assertions. And, in responding to Leo, there was no reason to go there. I suspect that it isn't lack of proof but that the facts contradict your opinions so you won't choose to believe them.

You might do better not looking to RFK, Jr. articles on Salon, or HuffPo blogs or Jenny McCarthy appearances on Oprah, or Olbermann, as sources of information -- as that appears to be the level of your argument in terms of factual understanding and support. I commend the IOM report as a place to begin -- assuming you're looking for facts and scientific analysis. You also might enjoy either the Omnibus Vaccine Trial transcripts, or any of the good summaries of the testimony. And, for something short, try Omer, et al., Vaccine Refusal, Mandatory Immunization, and the Risks of Vaccine-Preventable Diseases, Vol. 360, No. 19, New England Journal of Medicine 1981-1988 (May 7, 2009) (available online) and Why Does the Vaccine/Autism Controversy Live On? , by Chris Mooney, Discover (Magazine) (June 2009) (available online May 6, 2009).

I did not "lashed out with a rhetorical allegation of lying because someone disagrees with you". Rather, Leo, asked for an example of when Olbermann had lied -- which I provided, and a brief explanation of why I thought he'd engaged in willful ignorance while continuing to repeat his false allegations. And, while I suspect you won't believe it because you apparently don't believe facts that contradict your opinions -- I have considerable evidence on which I've reached my opinion that Wakefield's assertions were bogus -- and likely fraudulent -- and Olbermann's attacks on Deer can be considered to be an example of lying.

It isn't that Brian Deer convinced me. His articles are only a few of a large body of consistent evidence and research results. You might try reading some of it before you accuse others of lashing out without basis.
5.7.2009 6:51pm
Hal O'Brien (mail) (www):
Coming back here after a long delay... I was doing an egoscan using some the newly released search engines out there.

Anyway.

wfjag:

You're accusing Mr. Olbermann of "willful ignorance" and "lying." Those are very specific terms, and they both involve having knowledge of the intent of the person accused.

I submit you have no such knowledge of Mr. Olbermann's intent, nor what he does or does not know. Certainly nothing you've demonstrated. Lacking such knowledge, it is not possible for you to know if Mr. Olbermann's ignorance is "willful," nor is it possible for you to know if he's lying.

When it comes to your subject matter, I just don't care. I'm almost a perfect observer -- not just disinterested, but uninterested.

"Leo asked for an example of when Olbermann had lied -- which I provided, and a brief explanation of why I thought he'd engaged in willful ignorance while continuing to repeat his false allegations. And, while I suspect you won't believe it because you apparently don't believe facts that contradict your opinions -- I have considerable evidence on which I've reached my opinion that Wakefield's assertions were bogus -- and likely fraudulent -- and Olbermann's attacks on Deer can be considered to be an example of lying. "

It's funny -- in both senses -- that you would mention someone not believing facts that contradict one's opinions. Because, as far as I can tell, that's the crux of the matter -- you don't believe that English words are defined the way they are, and you wish to use them in your own idiosyncratic way, regardless of your failing to meet the necessary factual basis to use them accurately.

I encourage you to google the term, "projection."
6.8.2009 4:54am

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