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Cranky blogger here, nothing to see

I don’t like, here in this Tohu Bohu, to spend too much time whining about annoying columnists. I don’t, on the whole, go in for Fisking. Much of the Fisking that I see is just cheap mockery, and although I like cheap mockery, I restrain myself from it here. Sorry, guys.

On the other hand, I am (as y’all know) interested in rhetoric, and I am interested in argument, and as such I try occasionally to take apart a bit of rhetoric and see how it works. The Tohu Bohu wasn’t a week old before I went off on ad hominem in an argument purportedly about SUVs. I particularly enjoyed looking at Michael Behe’s dishonest op-ed last February. And, of course, I’ve attempted to apply the techniques to actual political speeches, from both parties. All of which is leading up to another note about somebody’s op-ed, and to sort of acknowledge, before I dig in, that the whole thing is a bit unfair, and yet I enjoy it anyway. What’s really unfair, actually, is that I pick on pieces which detail a position I disagree with, when I ignore far worse writing if it agrees with me. There it is; I’m in it for the fun.


John F. Manning writes in this morning’s New York Times about the nomination of Judge Samuel Alito, and the rhetoric surrounding that nomination. Well, he’s sort of writing about the rhetoric, and sort of writing about the nomination itself, and sort of writing about the history of the Court, and sort of making a muddle of things generally. The piece is called Balancing Act (regreq but not Select), and it purports to be a response to Democratic Senators who argue that seating Judge Alito would disturb the “balance of the court”. To begin with, I’ll point out that the four words I’ve just put in quotes are the only words Prof. Manning quotes in his piece. This is a warning sign for a straw man argument.

Well, and the first warning is that the piece begins “Some ... have argued”. Any time you read that some have argued something, you can assume that the argument as presented is not the argument as made. On the other hand, as a reading strategy, looking for straw men can be unproductive, simply because nobody ever is going to present the oppositions arguments entirely faithfully. The question is whether the speaker’s argument depends on the distortion. That is, if I say that, oh, Dick Cheney wants to allow the CIA to torture innocent people, and then I base my argument about torture on the innocence of the people being tortured, then the argument is not with Dick Cheney, but with a straw man. If, on the other hand, I say that Dick Cheney wants to allow the CIA to torture innocent people, and then I make an argument based on the efficacy of torture in intelligence-gathering, or on diplomatic complications when our rhetorical enemies portray us as willing to torture innocents, or on moral grounds that do not differentiate between “guilty” and “innocent” when it comes to torture, then I’ve just taken a cheap shot at the Vice President, but the argument is not with straw.

So. Sadly, when we consider that I’m taking the trouble to write about it at such length, I am not really familiar with the Democratic arguments concerning the balance of the court. So I’m cheating. I am assuming that Senator Schumer and his colleagues are saying things that make sense. It’s possible that isn’t true. I should probably look into it, but I won’t. Lazy, lazy me.

Anyway, Prof. Manning presents the Democratic argument that Judge Alito would throw off the balance of the court as being a general, rather than a specific argument, an argument for a “premise of some ideal and inviolate balance.” He suggests that the Democrats think that “presidents should select nominees who will leave the court's ideological composition intact”. He then mocks that argument, showing that the Senators do not generally object to movement on the Court. He reduces this (already ridiculous) argument to its absurd condition, saying that “Unless one is willing to say (without tongue in cheek) that today's court preserves the balance of the court appointed by George Washington and of every court in between, no rational basis exists to believe that the present ideological composition merits greater respect than that of any court that has come before or, more important, of any likely to follow.”

Wait a minute—does he really say that there is no rational basis to respect a good court over a bad one? No, that kind of Fisking is no more respectable than the straw man Prof. Manning creates. What he does appear to be saying is that when the Democrats argue for “balance”, they are really arguing for ideologies that agree with theirs. And there is some merit to that. On the other hand, I would guess that when Democrats argue that replacing Justice O’Connor with Judge Alito would upset the “balance of the court”, they are not pretending to argue that the balance is historical or perennial. No, they are saying that, at the moment, the court is balanced more or less where the country is balanced. Furthermore, Justice O’Connor was considered (by many, and I think inaccurately) to be the balancer on the court, the swing voter, the one who made the various factions at least converse with each other through her. For those who think that way, replacing her will automatically throw off the “balance of the court”, its equanimity, its ability to occasionally produce an actually useful precedent. Again, I disagree, but the argument has nothing to do with George Washington. Prof. Manning is refuting an argument that nobody is making, and ignoring the arguments that stand.

Prof. Manning also, and this really pisses me off, says “Ultimately, it will be difficult to avoid seeing Judge Alito as the Republican equivalent of Judge Ginsburg.” Ultimately, this is crap. Ultimately, people will (Your Humble Blogger hopes) remember that Justice Ginsburg was the pick of a centrist Democrat “triangulating” between Republicans and Congressional Democrats (who were viewed as liberal for some reason). Ultimately, the record stands that the “base” was not thrilled with the choice. Ultimately, Lexis-Nexis will continue to show that, for instance, Joan Biskupic’s Washington Post article of June 15, 1993 reads in part

Ginsburg, 60, has straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years. And while she would come to the court with more "liberal" leanings than retiring Justice Byron R. White, her record is a far cry from the traditional activism of retired Justice William J. Brennan Jr. and the late Justice Thurgood Marshall.
Ultimately, the record will show that Tom Oliphant wrote, on June 17, 1993 (syndicated to the St. Louis Post-Dispatch) that “Ginsburg diverges from Marshall, though, in her evolution from passionate advocacy into consensus conservatism on the federal appellate bench here for more than a decade.” Tony Mauro, in USA Today on June 28: “If, as expected, Ruth Bader Ginsburg, President Clinton's nominee to replace White, joins the court before it convenes again in October, the moderate middle will be strengthened.” Neil A. Lewis, the New York Times, June 26: “On a court that tends to divide along liberal and conservative lines, Judge Ginsburg is often in the middle.” Mr. Lewis also writes in that article of “the resolutely centrist judicial style of Ruth Bader Ginsburg” and “Judge Ginsburg's decidedly moderate jurisprudence”. Jurek Martin, in the Financial Times (of London), June 16: “It is generally assumed she will strengthen the divided court's centre, represented by Justices Sandra Day O'Connor, Anthony Kennedy and David Souter.” Dick Lehr, the Boston Globe, June 15: “The confirmation of Supreme Court nominee Ruth Bader Ginsburg ... would quickly strengthen the high court's emerging moderate bloc, according to legal experts.” Marshall Ingwerson, Christian Science Monitor, June 15: “The Ginsburg appointment generally fits Clinton's recent pattern of visibly moving toward the political center.” Judy Wiessler, in the June 15 Houston Chronicle, quotes “conservative legal scholar” Bruce Fein saying Justice Ginsburg is “destined to join the troika of uncourageous centrists.”

Admittedly, William H. Freivogel wrote in the St. Louis Post-Dispatch on June 27 that then-Judge Ginsburg is “is somewhat more liberal than advertised.” And noted legal scholar Robert Novak wrote that he was privy to information that then-Judge Breyer had been “vetoed by the left”, implying that Judge Ginsburg was the left’s choice. The Atlanta Consitution editorialized that “To the conservative eye, she is as acceptable as the choice of a liberal president can be.” I do not want to argue that everybody was happy with the nomination, nor do I want to say that conservatives ought to have been happy with it. I’m just saying, replace Ginsburg with Alito in those quotes, and see if Judge Alito is the Republican equivalent of then-Judge Ginsburg. Because he isn’t. That’s just a lie. And it’s a lie that has been repeated over and over by a self-serving group of Republicans who have everything to gain from an everybody-does-it false equivalence.

Because, by the way, Prof. Manning is probably the top academic textualist. That is, if you want to know about textualism, I’m told, you should go directly to Textualism and Legislative Intent, by John F. Manning, 91 Va. L. Rev. 419 (2005). Prof. Manning clerked for Judge Bork and Justice Scalia, worked with Justice Roberts in the Solicitor General’s office under Ken Starr, and he was nominated to head the Office of Legal Counsel in Attorney General Ashcroft’s office, but withdrew his name for reasons unclear to me. He’s been giving positive quotes about Judge Alito to the press. He’s not just some law professor opining on the law. He’s a player in this game. And, what’s more, he clearly agrees with Judge Alito on philosophical grounds.

Which are the grounds we should be discussing. It’s one thing for Your Humble Blogger, who likes to write about rhetoric, to write a whole long note about how the argument is taking place. But there is no reason for the New York Times to print a law professor’s op-ed piece endorsing Judge Alito’s nomination and let him drive the conversation from an actual discussion of the candidate and his qualifications and beliefs to a straw man argument about the rhetoric of the discussion. Please, please, please everybody, please Mr. NYT, talk about the subject under discussion. Please.

chazak, chazak, v’nitchazek,