Too curmudgeonly

by Micah on November 5, 2003

In a series of posts (here and here) and comments, the Curmudgeonly Clerk has attacked Dahlia Lithwick, who writes Supreme Court commentary at Slate. In particular, the Clerk doesn’t like this column, in which Lithwick tries to explain why Justice Scalia, unlike many other judges and justices, frequently speaks out about the most controversial issues of the day. Suffice it to say, the Clerk doesn’t like Lithwick’s diagnosis. In fact, he disagrees with it so much that he’s decided Lithwick no longer deserves to be treated civilly.

In particular, the Clerk is taking flak for this comment:

Lithwick does not provide any explication of the supposed “law” in question [concerning when judges should recuse themselves from cases]. Legal details are not her forte, which may explain why she writes about the law rather than practices it.

A couple things, here. First, Lithwick wasn’t arguing that Scalia’s public comments (about the Lawrence case) were illegal. So legal details weren’t the issue. The Clerk seems to be looking for law where none is needed. (As a law student myself, I can sympathize.) Here is what Lithwick actually said:

There is, to be sure, an important difference between Scalia’s remarks on the Pledge case and his recent skewering of the Lawrence decision . . . There is nothing wrong, technically, with his subsequent comments condemning the decision in Lawrence . The case is already decided, and his intemperate comments were mild compared to his scorching written dissent.

The word “technically” above is important. Lithwick is asking whether commenting publicly about controversial issues is an appropriate thing for justices to do. And she’s also asking what motivates Justice Scalia, in particular, to take this role upon himself. Both of these, I think, are interesting questions—and people can reasonably disagree about Lithwick’s answers.

Second, I don’t think the Clerk shows that Lithwick is wrong in her view about Scalia, which boils down to the claim that he comments in public because, like the academic he was, he values consistency of principle and candor, and because he thinks that, as a member of an embattled cultural group (large as it may be), he feels he has a duty to speak out about the issues that matter to him. Now, Lithwick obviously disagrees with Scalia’s message, and she suggests that it’s a dangerous one. But even if that makes her partisan, or politically biased, it doesn’t make her, as the Clerk suggests, ignorant of the law or lazy. And it says absolutely nothing about her ability as a practicing lawyer. That type of personal criticism is totally unwarranted.

I think the Clerk is missing out on what lots of other people see in Lithwick’s writing—that she’s playful, often tongue-in-cheek, less predictable than many commentators (see her comment on the 9th Circuit’s decision to halt the California election), and that she makes general reading about the Supreme Court enjoyable for a large lay audience. She’s not writing legal briefs; nor does she pretend to. She’s writing journalistic columns about Supreme Court politics. And they’re usually pretty funny, sometimes racy, and always interestingly written. If the Clerk disagrees with her positions, that’s fine. But he’s wrong to question her legal credentials. Instead of digging himself deeper into his personal attack, he should simply have admitted that he went too far. Every once in awhile, careful bloggers do that.

{ 10 comments }

1

Keith M Ellis 11.05.03 at 8:07 am

I tried to read the Clerk’s post, but found I didn’t have enough patience. Perhaps I love Lithwick too much.

I interviewed for a position with _Slate_ last year, and I think I was as excited about the possibility of meeting Lithwick as I was anything else. Well, and Kinsley, too. God, I’m a geek.

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The Curmudgeonly Clerk 11.05.03 at 6:41 pm

Mr. Schwartzman also commented on my excessive curmudgeonry on my weblog and I have addressed his remarks there (both in the comments and in an update to the post), so I won’t reprise most of the substance of those replies here. Readers, however, may be interested in this post regarding the obligation of civility in debate in general.

I would like to offer a variation on a point that I previously put forward though. From where I am sitting, Lithwick in tenor and substance portrays Scalia in the same fashion that Ann Coulter depicts her chosen prey, with the exception that Lithwick can at least concede that Scalia is not a moron. (He’s more of an insidious genius in her view.) Both offer ridiculous caricatures that they then proceed to beat like a pinata. “Colorful” is one way to describe Coulter, but that would not be my adjective of choice. “Disingenuous” seems more fitting. It seems to me that what renders identical conduct “colorful” in one instance and “disingenuous” in another is the beholder’s sympathies. (Of course, it may be that Schwartzman thinks either that Coulter is also “colorful” or that the comparison between Lithwick and Coulter is unfair.)

At any rate, the low esteem in which I hold Lithwick is an impression that I have developed over time. It’s not just this bit about Scalia that is at issue. I think that Schwartzman is wrong in his characterization of the nature of her columns. Lithwick writes two different sorts of columns in general, one which is a descriptive account of oral arguments and the other which pretends to be analytical. The latter sort of column usually runs under the title of “Jurisprudence,” which is a peculiar designation for a supposedly non-legal column directed at non-lawyers. Even more peculiarly given Schwartzman’s characterization of her columns, Lithwick does write on the law and makes legal claims in these “Juriprudence” columns (e.g., “The law is perfectly clear . . . .”). The problem is that Lithwick’s grasp on the law is rather unsophisticated. Consider, for example, my evaluation of the column in which she suggested that “[t]he law is clear.” It turns out that the law is reklatively clear, by the way, it just happens to be the exact opposite of what Lithwick represented. An additional problem is that, given that so much of her Slate audience likely does consist of laymen, they have no way of knowing that Lithwick’s legal representations are highly flawed. Indeed, they are likely to be taken in by what one blogger has described as her “charming” prose.

I would like to close by reiterating one point that I have explicitly made elsewhere. Schwartzman is principally vexed by my characterization of Lithwick as ignorant or lazy or incompetent (or some combination thereof). It’s the incivility of these charges that motivated him to repsond to my criticism, I take it.

In the column that I took her to task for, Lithwick characterizes Scalia as “more Jeremiah than Judge,” describes his public speaking as “insidious,” “pedantic,” and “benighted,” and writes that his originalist views “cast[] himself, rather ghoulishly, as crypt-keeper rather than as judge.” With regard to Scalia’s character, she opined that, “Scalia comes across as similarly burdened; beaten down by the weight of his own inevitable rightness.” For readers who find Lithwick to be too subtle, Slate helpfully accompanies her column with a drawing of a raving Scalia that is as cartoonish as her written depiction of the justice. So its okay to write of an associate justice of the Supreme Court with great asperity, but it’s out of bounds to do so with regard to a journalist?

Like the reasonable blogger you reference, I too will issue a retraction when one is warranted (e.g., this). And while I genuinely appreciate the criticism, Mr. Schwartzman, I am unpersuaded. Accordingly, I must decline to issue a retraction in this particular case.

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micah 11.06.03 at 12:37 am

I’ve had some time to read more carefully all the links related to the Curmudgeonly Clerk’s criticisms of Lithwick, and I find them even weaker now than I did before.

First, CC says that he’s formed his opinion that Lithwick doesn’t deserve civil treatment by reading much of her work over time. I suppose if I had independent reasons to rely on CC’s judgment, that would be helpful. (As an aside: it is sort of strange for people who write anonymously to attack someone’s personal credentials. Normally, I don’t have much problem with anonymous writing. But here, given the type of criticism, the asymmetry seems more troublesome.) Since I don’t have such reasons, I can only go by what he has said about her work. This limits me to two columns. One about Scalia and the other about consensual sex.

Let’s start with the discussion about “consent”:http://slate.msn.com//?id=2089687. First, note that Lithwick’s column is pitched at a fairly high level of generality. She isn’t talking about any specific legal code–state, federal or otherwise. Read charitably, she’s talking about what is, and what she thinks should remain, the standard for determining whether someone has consented to sex. Her argument is that when a woman says “no” to sex, the presumption is that she means it. She is not saying that a women must say “no,” only that doing so is a sufficient condition to block consent. CC concedes that “[m]en who press onward in the face of a “no” proceed at considerable risk.” Now this seems like a sensible statement. And it suggests that, even if Lithwick is not completely right, her position captures an important intuition about the law—at least as it’s popularly understood. That intuition is that it should not be difficult for women to reject unwanted sex. The intuition is captured by the view that a reasonable person stops advancing sexually when told “no”. Lithwick’s point is that we shouldn’t alter the presumption in favor of this linguistic convention. Now you can disagree with her claim, but it isn’t obviously wrong, crazy, or ignorant of the law.

Perhaps it’s also worth mentioning here that Eugene Volokh took these arguments seriously enough to “consider”:http://volokh.com/2003_10_12_volokh_archive.html#106605691767851667 them without resorting to personal attacks. (Nor does Volokh discuss any actual law in his comment–which might suggest something about the type of discussion Easterbrook and Lithwick were having.) But CC doesn’t criticize Volokh for failing to scorn Lithwick. If Lithwick were really that bad—if it was dangerous to take her seriously, as CC suggests (in referring to Leiter’s argument against civility)—then that type of criticism seems appropriate. The fact is, it isn’t appropriate. Lithwick’s argument captures an important view in this debate, and it’s worthy of serious treatment for that reason.

Now to the column about Scalia. I say above what I think about the article and its general purpose. CC repeats his view that Lithwick uncivil, or offensive, in her criticisms of Scalia. So let me address the examples that he takes from her column directly. Here they are, one at time:

bq. “more Jeremiah than Judge”. Here’s what Lithwick actually said: “He [Scalia] is convinced that civilization is in decline and that this banishment of religion is directly responsible. He truly believes that the coarseness and callousness of modern mores and practices have imperiled us all. And if those beliefs make him sound more Jeremiah than Judge, well, Scalia would probably welcome the comparison.” Her point is that, in his public speeches, Scalia sounds more like a prophet than a judge. It isn’t at all clear to me what exactly is offensive in this statement. You might think Lithwick is wrong to criticize judges who comment publicly on controversial religious issues, but she isn’t obviously wrong—nor is she out of bounds in arguing for what many think is a fairly obvious constraint on the public role of judges.

bq. “insidious”: what Lithwick says: “This, then, is the insidious and brilliant part of the Scalia speaking tour: Merely by virtue of his public role he is actually tearing down the wall between church and state every time he opens his mouth. Which is precisely what he wants.” It’s true, Lithwick thinks that Scalia’s public speeches are dangerous because they undermine the separation of church and state. Her claim isn’t disingenuous; nor is it ignorant. A lot of (reasonable) people are worried about what Scalia says regarding subjects related to religion.

bq. “pedantic”. Again, here’s the context: “One explanation for Scalia’s pedantic bent is his background as a law professor at the universities of Virginia and Chicago, Stanford, and Georgetown. He loves to teach. There is a didactic quality to Scalia’s performance on the bench—a sense in which he uses oral argument merely to lecture and browbeat his brethren—that is hard to escape. It is Scalia’s way to joke, to interrupt, and dominate his way through oral argument.” Lithwick is describing Scalia’s background as an academic to help explain why he comments publicly about such controversial issues. All she’s saying is that he likes to give punchy academic lectures (arguably, the best kind!). Of course, you might disagree with her description, but I think a lot of people, especially those who’ve listened to oral argument at the Supreme Court, will agree with what she says about Scalia’s tone—that’s it’s often biting, humorous, and dominant.

bq. “benighted”. Lithwick’s phrase: “What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?” I suppose you might read “benighted” here to mean ignorant. But in context, what Lithwick is clearly asking is: why does Scalia use his public speeches to represent himself as part of an oppressed class of conservative and religious public intellectuals? Maybe CC wants to equate this with Coulter-style rhetoric, but the analogy is hardly convincing. I haven’t seen Lithwick say anything remotely close to: Americans would lynch Democrats if they spoke coherently—which is “Coulter’s”:http://www.anncoulter.org/ latest gem.

bq. “cast[] himself, rather ghoulishly, as crypt-keeper rather than as judge.” Lithwick isn’t calling Scalia a ghoul personally—she’s saying that he sees his role as a judge as if it was a conduit for the views of the dead. That’s hardly offensive. Should we also take objection to the phrase “dead hand of the past”? I don’t think most originalists feel driven to insult personally those who describe their jurisprudential views in this way.

bq. “Scalia comes across as similarly burdened; beaten down by the weight of his own inevitable rightness.” Again, in context, Lithwick is drawing an analogy to a line from a movie. And her point is that Scalia is motivated to speak out by his sense of principled conviction, which he clearly sees as embattled. Obviously, she disagrees with his principles—hence the touch of sarcasm. But is that evidence that she’s too ignorant to practice the law?

A couple more general points. First, as I said above, Lithwick’s writing a column for a general audience. She isn’t writing law review articles, cert petitions, legal memos or briefs. No one is relying on her specifically for legal advice. Anyone who reads her knows that she’s offering her views of the law. You can, of course, reasonably disagree with her. But nothing she’s said, at least in the topics under discussion here, is so outlandish to warrant what CC has said about her.

Second, the Curmudgeonly Clerk references Brian Leiter’s views about the harm of civility in the blogosphere. I have a lot of respect for Leiter’s work in legal philosophy, and I think his efforts establishing the Philosophical Gourmet have created enormous benefits to students and faculty alike. But I don’t think I’ll take my cues about blogospheric civility from him. Even if I did, though, Leiter’s examples for people who don’t deserve to be treated civilly include creationists, Straussians, and, well, Josh Cherniss. And even if Leiter has a point about creationists, a lot of people think he went overboard in what he said about Straussians and Cherniss. Even people who agree that Straussians are very wrong think there’s more room for civility that Leiter does.

At any rate, I don’t think CC has done nearly enough work to show that any of Lithwick’s columns are so devoid of intellectual content that they are unworthy of reading. In fact, far from it. Each time CC criticizes Lithwick, someone he seems to respect argues that she has a point—and often the right one. Maybe they, too, deserve similar scorn. But they seem to be seeing something in Lithwick’s work that CC obviously doesn’t.

4

Keith M Ellis 11.06.03 at 2:50 am

Micah, that’s a wonderful entry and I would have liked to see it as a post, not a comment. However, I can’t help but feel that too much attention is being paid to CC on this matter. He has a pretty strong emotional investment in his view of Lithwick and as a result it’s disproportionate. It’s no great mystery. And it’s hardly unusual.

Lithwick is arguably, by a large margin, the most popular commentator on the SCOTUS. She’s well-loved, amusing, and pithy; and she doesn’t disguise her left-of-center (but hardly radical) political point-of-view. She is _not_ an expert on constitutional law. (Which she frequently acknowledges, in one form or another.) Were all these things true except that she were politically right-of-center, we’d be hearing CC’s complaints on this side of the aisle, with just as much indignation and alarm. That’s not an excuse, it’s just that it’s best, really, to mostly ignore this sort of hystericism.

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The Curmudgeonly Clerk 11.06.03 at 4:00 pm

Cognitive Dissonance:

Keith M. Ellis Comment #1:

I tried to read the Clerk’s post, but found I didn’t have enough patience. Perhaps I love Lithwick too much.

I interviewed for a position with Slate last year, and I think I was as excited about the possibility of meeting Lithwick as I was anything else. . . .

Keith M. Ellis Comment #2:

I can’t help but feel that too much attention is being paid to CC on this matter. He has a pretty strong emotional investment in his view of Lithwick and as a result it’s disproportionate. It’s no great mystery. And it’s hardly unusual.

Who exactly has a strong emotional investment in their view of Lithwick, Mr. Ellis?

I’m comfortable with disagreement, as one might gather from my fairly calm response to Schwartzman’s criticism. But Mr. Ellis’s comments are just plain weird. He confesses to not having the patience to even read my arguments, but that doesn’t keep him from pronouncing them hysterical. Again, one has to ask exactly who is invested in their position here?

Of course, this sort of armchair psychoanalysis does not even begin to address my criticism on the merits. But, of course, you’d have to actually read my posts to do that.

6

The Curmudgeonly Clerk 11.06.03 at 4:30 pm

Mr. Scwartzman:

We’ve probably hashed out our respective positions as far as is warranted, but I would like to take issue with one particular point that you make in your preceding comment. You write:

As an aside: it is sort of strange for people who write anonymously to attack someone’s personal credentials. Normally, I don’t have much problem with anonymous writing. But here, given the type of criticism, the asymmetry seems more troublesome.

The problem is that I do not attack Lithwick’s credentials per se in my posts. Here’s what I actually wrote regarding her credentials:

I do not know many details regarding Lithwick’s credentials. She is identified as a senior editor at Slate. Her staff biography lists a stint as a lawyer at “a family law firm” and says that her J.D. was obtained from Stanford. A Lithwick fansite maintained by Stephanie Tai adds that she clerked for a federal appellate judge. Of course, the realization that analysis this flawed is coming from someone with this background is hardly comforting. Lest you be lulled into a false sense of security by credentials, it’s probably useful to recall that Ann Coulter received her J.D. from Michigan and also clerked for a federal appellate judge. It doesn’t change the fact that her writing is scurrilous nonsense does it?

Implicit in these remarks is an acknowledgment that her actual legal credentials are impressive. I don’t question her bona fide credentials. It’s the credibility of her legal analysis and conclusions that I am questioning. So it is somewhat difficult to understand why my compartive credentials or identity would be relevant. Either my criticism is valid or it is not. You think not, but this bit about anonymity is logically irrelevant to this determination. (At least one other blogger recently made a similar argument about anonymous blogging, but subsequently thought better of it.) My credentials are stated over at my site, by the way, if you are really that interested.

7

micah 11.06.03 at 6:22 pm

I take your point, CC, about what you said regading credentials, and I agree that it’s irrelevant to the argument we have above. My comment was just “an aside.” But do you disagree with the larger point? Is there an argument against people who do attack others’ bona fides anonymously? I read Drezner’s initial criticism and found it somewhat persuasive (though I can definitely imagine good arguments going the other way). And I’m not sure exactly what he takes back in his letter to Atrios. Is he taking back his view that anonymous blogging actually reduces the costs of commenting–since, in Atrios’ cases, anonymity didn’t provide very secure protection? Assuming anonymous bloggers could remain anonymous, even when it really counts, would Drezner stand by his criticism? I’m not sure how to read what he says there.

At any rate, I take this to be a wholly separate discussion–albeit a very interesting one.

8

Keith M Ellis 11.06.03 at 6:24 pm

“Who exactly has a strong emotional investment in their view of Lithwick, Mr. Ellis?”

I didn’t say that I didn’t. And you’ll note that I agree with your charge that Lithwick isn’t an expert on constitutional law. My defense of her was not passionate. Your criticism of her is.

I didn’t manage to read all of your posts, but I read some of each of them, and I’ve read everything in this thread. I recognize the tenor of your rhetoric. I recognize the argument you’re making, I’ve seen it made against many other commentators of various ideologies. Because you are ideologically opposed to Lithwick, the dangers of her faults are magnified in your estimation.

I mean, really. Comparing Lithwick to Coulter is a dead giveaway. Lithwick is biased and sarcastic, but she’s a long, _long_ way from Coulter and I’m sure even you realize this. Your comparison of the two says more about you, and your argument in general, than it does about Lithwick.

9

C.J.Colucci 11.06.03 at 8:18 pm

I think all that needs to be said on the actual subject of the Lithwick piece is that Justice Scalia’s big mouth cost a potentially decisive and utterly predictable vote in the juiciest case on the Supreme Court’s 2003-04 docket. No other Justice’s dreary jurisprudential ramblings on such riveting topics as the uses of international legal materials as sources for constitutional arguments or conference procedures had any such impact. Reminds me of Ted Kennedy sitting mute and sheepish during the Clarence Thomas-Anita Hill hearings. At least the experience got him off the sauce and into a marriage.

10

Tom T. 11.07.03 at 4:46 am

Lithwick’s credentials are impressive but largely beside the point, as I see it, because her skill is not in legal analysis but in lively writing. Her columns largely disdain the notion of law as a body of principles and instead present the law as the result of an interaction of personalities. I happpen not to share her views in this respect — I do not believe that judges are as jejune as she presents them — but she is undoubtedly an engaging and imaginative writer.

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