links for 2009-06-07
The "Public Plan" and Health Reform

The National Review: Taking the Class Out of Class Warfare: Ed Whalen Edition (Why Oh Why Can't We Have a Better Press Corps?)

Eugene Voiokh seriously dislikes the arguments of National Review "legal correspondent" Ed Whalen:

The Volokh Conspiracy - Supreme Court Justices and "Policy Implications": [T]alk [like Ed Whalen's] about how judges shouldn't "make policy" has been commonplace now, especially on the Right.... [C]riticisms of... decisionmaking based on what seems to the judge to be likelier to produce good results are often correct.... But it's a mistake... to turn that important insight into a categorical assertion that judges shouldn't "make policy."... [J]udicial development of legal rules, with an eye towards their consequences, is a longstanding feature of American law, recognized and accepted from the Framers onwards...

And Volokh explains:

Ed Whelan.... "Sotomayor thinks an unobjectionable and apt description of the role of Supreme Court justices in making decisions involves 'ponder[ing] about ... policy implications'."...

The trouble with this criticism [of Sotomayor]... is that of course Supreme Court Justices routinely, and entirely properly, consider "policy implications."... [T]he Supreme Court acts as a common-law-making court.... [It must consider policy implications where] statutes are either deliberately vague or specifically delegate authority.... Antitrust law... evidentiary privileges... copyright fair use.... [T]he job of the federal courts, and in particular the Supreme Court, is to develop legal rules that they see as sensible "in the light of reason and experience"... looking at consequences ("the policy implications") is an important part of that.... American law... was developed by the common-law courts. It has been in considerable measure codified by legislatures, but common-law courts continue to develop it.... [A]ll the Justices... routinely consider practical implications.... The cases that come before the Supreme Court are generally not ones in which the text provides one absolutely clear result... such cases... tend to be resolved early precisely because the result is clear.... [Y]ou often have several plausible readings... [so] judges... ask whether one or another reading would have results that are ridiculous, or inconsistent with what was understood as the purpose of the provision, or unduly administratively burdensome....

Ed Whalen responds:

Exposing an Irresponsible Anonymous Blogger - Ed Whelan - Bench Memos on National Review Online: One bane of the Internet is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks...

To which my first reaction is: What!? Eugene Volokh isn't anonymous. He is very Nonymous indeed!

But it turns out that Whalen doesn't dare pick even the smallest argument with Volokh. Whalen's obsequious groveling is truly something to behold:

Ed Whelan: I initially wrote a sloppy sentence.... Volokh used [it] as the occasion for a broader discussion.... I credited Volokh for a “characteristically thoughtful critique.”... [I] tweaked my sloppy sentence so that it read as it should have in the first place...

And then Whalen tries to create daylight that doesn't exist between Volokh and Sotomayor's expression of what is the same idea:


Supreme Court justices are even more likely than other federal judges to legitimately consider the consequences of their decisions...

Sotomayor, draft text of 2006 Hofstra graduation speech:

[M]y thoughts sound like a three-part test. Unfortunately, I have now been a circuit judge too long. There is a joke that aptly describes the difference between supreme court, circuit court, and district court judging. It involves three judges who go duck hunting:

A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck—how will the environment be affected, how will the duck hunting business be affected if he doesn’t shoot the duck, well by the time he finishes, the duck got away.

Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger—1) he lifts the shotgun to his shoulder, 2) he sights the duck, 3) he measures the velocity of the duck’s flight, 4) he aims, and 5) he shoots—and, he misses.

Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.

So whence the "bane of the Internet... the anonymous blogger who abuses his anonymity to engage in irresponsible attacks..."?

The "anonyous blogger' is Publius of Obsidian Wings. The "irresponsible attack" is Publius's giving a wider distribution to Volokh than Volokh would have otherwise had.

Why oh why can't we have a better press corps?