Something that I should have said the first time we went around this particular merry-go-round, but didn’t (because I didn’t see it until some days after it had happened), and want to say now that we seem to be going around it again. Glenn Greenwald’s animus towards Orin Kerr is perhaps unsurprising (Kerr’s politics are very different from Greenwald’s, and his personal style is as dissimilar from Greenwald’s as can be) but is not especially well justified by the facts. Greenwald has repeatedly depicted Kerr as an “apologist” for Bush administration policies (disclosing that Kerr has not been an apologist “all” such policies, but notably failing to mention that Kerr was on many occasions an explicit critic of the Bush administration, and of various conservative arguments made on its behalf) in a manner which is both offensive and untrue. It’s quite clear that Kerr is (moderately) conservative – it is also clear from even the most superficial reading of his blogging and writing that he is neither doctrinaire, nor prepared to defend legal doctrines or arguments that he doesn’t himself believe in. Perhaps Greenwald means by “apologist” something like “someone who advocates for policies which I strongly disagree with.” If so, he should use more neutral language. If he intends to convey something more like the everyday meaning of “apologist,” which carries insinuations of dishonesty and hackery, he can do so of course – but it would be nice to see some evidence supporting this claim.
If Greenwald responds to this, it’s not impossible that he’ll respond in the same way as he has done to Kerr – through a fairly direct personalized attack on my motives in writing this defence. To anticipate one possible line of attack – Kerr is nominally a colleague of mine (he is employed by the same university). That doesn’t mean that I know him well – I have seen him perhaps once in the last five years, and have not (as best as I can recollect) had any other exchange with him during that period. He did come once to talk to a class I was teaching shortly after I arrived at GWU. However, my relations with him could best be described as friendly, but not close, and most importantly mediated through shared membership of a collective community (the blogosphere). Which is to say that they are more or less similar to my past relations with Glenn Greenwald (with whom I have very occasionally exchanged amicable emails). In short – the reason I want to defend Orin Kerr is because I find his online writing thoughtful and interesting (I have rather different feelings about some of his colleagues on the Volokh Conspiracy). While I’ve absolutely no problem with strong partisanship, it’s necessary, in the end of the day, to recognize that we live in a plural society with competition over values, in which the other guys are going to win, at least some of the time. I would frankly far prefer to live in a world where at least some of the other guys thought like Orin Kerr than one where they thought like, say, Marc Thiessen. Claiming that everyone on the other side of the intellectual divide is a dishonest hack seems to me to be an exercise in self-flattery and wishful thinking. It also means that one doesn’t have to learn from people whom one strongly disagrees with (this kind of learning is often unpleasant for exactly the same reason that it is valuable). I don’t know if Glenn Greenwald thinks that the people on the other side are all hacks (I’m mostly bringing it up because a couple of our commenters have made suggestions along these lines in the past). But I suspect that the reason that Kerr so gets on his nerves is precisely because he argues for a greater deference towards the state than Greenwald would like, but is not, obviously, a Thiessenesque hack. For me that’s a feature, not a bug.
[nb that this is a personal blogpost, does not by any means necessarily represent the views of other CTers, some of whom undoubtedly take a more vigorous line on this, etc]