October 30, 2008

Obama's judges. Althouse's obsession with linking.

WaPo's Ruth Marcus quotes me in her column, which is aimed at allaying fears about what Obama might do to the federal judiciary, fears stoked by Federalist Society co-founder Steven Calabresi in that op-ed in the Wall Street Journal the other day. Marcus quotes Calabresi and National Review's Ed Whelan -- linking to both -- then asserts that it's "easy to exaggerate the impact of the next president" on the courts.

First, she quotes and links to Terry Eastland of The Weekly Standard, who, she says, "has managed not to succumb to the fevered worries of his fellow conservatives" and says that "a Democratic president would probably simply be doing 'maintenance work' on the Supreme Court, at least in his first term, replacing one liberal justice with another." The direct quote from Eastland is: "Obama couldn't create a liberal majority unless at least one conservative, or man-in-the-middle [Anthony M.] Kennedy, were to step down, and that looks doubtful, at least in the next four years." Marcus thinks Eastland "understates" how much McCain could do to tip the Supreme Court with conservatives to replace the liberal Justices. Eastland aptly noted that McCain will need to appoint people that the Senate will confirm, so he won't be able to go as far as avid conservatives would like.

But how far to the left will Obama go in picking judges? Here, Marcus looks at Obama's July 2007 statement (dicussed in Calabresi's op-ed): "we need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Marcus writes:
This stance, Calabresi said, is tantamount to requiring “the appointment of judges committed in advance to violating” the oath they take to dispense justice impartially. But as University of Wisconsin law professor Ann Althouse, no wild-eyed liberal, pointed out, Obama “is not saying that judges should distort the meaning of law so that people they empathize with can win cases. He's saying judges need to understand the realities of the world, most significantly, what life is like for people.”
Now, the first thing I notice there is that Marcus did not link to my blog post, which you can find here. As you may remember, I got quite angry at The New Yorker's George Packer for writing about something from my blog without linking, depriving his readers of quick access to the complete context. Packer was especially irksome because he insulted me and clearly meant to damage my reputation as a law professor. But Marcus, distinctly differently, means to take advantage of my reputation as a law professor. She has chosen the statement of mine that best suits her argument and intends for my status as a law professor to bolster the statement. (By the way, Marcus dropped the italics I had on the 2 words, and I put them back above.)

Why no link? She linked the other writers she quoted. I see 2 possible reasons (aside from simple inattention to detail).

One reason would be to deprive readers of the context. Marcus picked the quote she wanted. She goes on to argue that "the suggestion that electing Obama threatens the rule of law, representative democracy and liberty itself is so unhinged it is hard to take seriously" and admits that conservatives won't like Obama's judges. My comparable assertion is: "I don't doubt that Obama will appoint liberal judges and that the Senate will approve them. But there is a limit to what judges can do, and if Obama appoints anything like the hemorrhaging hearts Calabresi envisions... there will be a mighty backlash," a GOP resurgence in 2010 and 2012. It's possible that Marcus wants to keep her readers from seeing that. I come out and say I think Obama's judges will be liberal, and she only says they probably won't make conservatives happy.

The other reason is that if she were to link to my blog, I would be transformed into Ann Althouse, the blogger, who might be writing some odd, bizarre thing at any given moment. Perhaps she stopped by at 10 a.m. yesterday when the top post was a picture of terrified eggs and the second one was titled "Priapism? That's the least of your worries!" Not so helpful in credibility-boosting as University of Wisconsin law professor. On the other hand -- let's be honest -- University of Wisconsin law professor connotes a person who would enthusiastically welcome the most far-left judges. What a dilemma! Oh, well, shore that up with "no wild-eyed liberal." What are you going to do? Write identifed as "right-wing" by The New Yorker?

IN THE COMMENTS: Trey writes:
Since I have highly developed empathy I am a shoe in [sic] for a high level judge appointment by He Who Must Not Be Criticized, dare I hope for SCOTUS? I dare!

After my appointment, I will have empathy for your distress Ann, and I will legislate from the bench. I will make quoting without linking to blogs written by women a federal hate crime.

I feel your distress.
Aha! Marcus linked to all the males she named and failed to link to the one female. Let's get the jump on the law of the future and think like a judicial-empath.

UPDATE: Email from Ruth Marcus, quoted with permission:
Dear Prof. Althouse,

I'm sorry about the missing link, but the explanation is a lot less interesting than the one you conjured up. The boring truth is that I'm a (relative) techno-idiot, and new to blogging. When I wrote the post in a word file, I was rather proud of myself to have put in hyperlinks, including to your post. But my email wouldn't let me attach the document to send to editors (yes, we still have editors here), and when I copied the documet into the body of the message, the links disappeared. My editors dug up the links themselves, but apparently neglected yours. I guess that makes them part of the grand conspiracy, but now that it's been unmasked, I'll ask them to put it in. Also your italics, which I suspect were the victim of the same word to e-mail copying.

It's probably more fun to impute motive to people, but a quick email to me would have gotten the link inserted pronto. Of course, it wouldn't have made for a blog post. And by the way, no wild-eyed liberal was my effort to try not to pigeon-hole you, to avoid the kind of resorting to cartoonish labels that you rightly criticize without going into a lengthy explanation. No good deed, I guess.

Best,
Ruth

33 comments:

Richard Dolan said...

You assume that Ruth Marcus inserted the two links you mention, and then speculate about her motives in omitting one to your post. Perhaps so. It's also possible that the linking/not linking may all have been done by an editor or assistant. My impression is that Marcus grew up in print media, and 'linking' (as opposed to citing, which she did) may not be natural for her. Or (like me) she just may not know how to insert a link into her own blog-post. I'm sure it's quite simple, but she (again like me) may never have learned the trick. Never underestimate the lack of computer skills in the over-50 set. (Wasn't that the theme of a less-than-successful attack ad against McCain?)

ricpic said...

...identified as "right wing" by the New Yorker.

A badge of honor.

Seriesly, isn't the fear about Obama not what he'll do to the complexion of the Supreme Court, but the number of "living constitution" lower level federal judges he'll appoint?

Floridan said...

Would worried conservatives be satisfied if Obama promised not to nominate anyone to the SC who was farther to the left than Roberts and Aliot are to the right?

Certainly, a President Obama will not nominate a conservative, but there is no evidence from his past (see account of his HLR presidency or selection of campaign staff) that he is going to look for a far-left candidate.

Despite right-wing mischaracterizations, Obama seems to have a fairly center-left legal philosophy.

SteveR said...

I'm far from sophisticated at internet things (in addition to being a terrible typist and because of that prone to spelling mistakes) but it took me about five minutes to learn how to embed a link. Would have been about two if I could type.

TMink said...

Since I have highly developed empathy I am a shoe in for a high level judge appointment by He Who Must Not Be Criticized, dare I hope for SCOTUS? I dare!

After my appointment, I will have empathy for your distress Ann, and I will legislate from the bench. I will make quoting without linking to blogs written by women a federal hate crime.

I feel your distress.

Trey

john said...

Ann said - On the other hand -- let's be honest -- University of Wisconsin law professor connotes a person who would enthusiastically welcome the most far-left judges. What a dilemma!

On the third hand, maybe Marcos was worried about your ties to the beer and cheese lobby.

Bissage said...

Professor Althouse asked: "Why no link? She linked the other writers she quoted."

In “Miracle on 34th Street”, Kris Kringle does what’s best for a customer and her child and refers her to a competing department store. For that he comes within inches of losing his job.

Goodness prevailed in that movie, which some would describe as a fairy tale.

Certainly Ms. Marcus appreciates that her employer jealously guards its readership and that some links are riskier than others.

Original George said...

The Marcus piece is a 'cut and paste' job or what's otherwise called a 'thumbsucker.' (Essentially, this is the paper version of linking.)

No research, just rewriting what other people said and giving it a bit of opinion, i.e. if you disagree with me, you are "unhinged."

She got out of the office by 5. The WaPo is merely posting the print version of her column. It takes time to put in subjective links.

On the other hand, I think she would say to you that you're being too sensitive, you weren't really misquoted, space is tight, and blah blah blah....

If it's any consolation, in five or 10 years, she won't have a paper platform as the WaPo will be entirely on the net, she'll be a part-time temporary independent contractor, you'll be on equal footing with her, and whatever sense of specialness paper presently bestows will be an ancient memory.

Cabbage said...

Could McCain get a conversative on the court (ok, lots of assumptions going on here) by nominating a senator?

Could a well-liked, but seriously conservative senator get through confirmation? Someone like Jon Kyl?

Cabbage said...

hey, great spelling on my part...

Jon Swift said...

I completely agree that you should link to someone you refer to, Ms. Althouse. It is certainly a violation of blogger ethics not to do so.

jdeeripper said...

Ruth Marcus writes:...But as University of Wisconsin law professor Ann Althouse, no wild-eyed liberal...

Yes she is Ruth.

Simon said...

Cabbage - how's Senatorial courtesy working out for John McCain so far? McCain will face a heavily Democratic Senate if he wins. If Stevens retires in that scenario, I expect to see Richard Posner nominated as a compromise nominee. Posner isn't particularly old, but he's old enough that he won't serve for decades. He's not a conservative, but he isn't a liberal, either. He's undoubtedly brilliant and idiosyncratic, and most importantly for the Dems, he's on record as saying that he wouldn't overrule Roe v. Wade. I wouldn't want him nominated in most circumstances, but he's really the best we're likely to get through the Senate if McCain wins.

Simon said...

Richard Dolan said...
"It's also possible that the linking/not linking may all have been done by an editor or assistant. My impression is that Marcus grew up in print media, and 'linking' (as opposed to citing, which she did) may not be natural for her."

That doesn't hold water. Marcus or her editorial assistant linked to other stuff cited in the same article. The piece doesn't link for the same reason that the New Yorker didn't link: to deprive the reader of the context of the quote. The media has being depriving readers of the context of quotes for a long time, but it's indefensible in this setting where a link is possible.

Floridan said...
"Despite right-wing mischaracterizations, Obama seems to have a fairly center-left legal philosophy."

Most of the right-wing "mischaracterizations" I've seen are verbatim quotes from Obama, so if there's mischaracterization going on, it's his, not ours.

rhhardin said...

Ruth Marcus turns out not to be the Ruth Marcus the logician.

Chip Ahoy said...

She playfully omits the links because it is the little girl in her, no? She likes to play the game of chase.

OK, that's going to be my explanation for every incomprehensible thing a woman doesn't do. Or does.

Things That Come Between Us said...

Would worried conservatives be satisfied if Obama promised ...

Are you kidding?

Ann Althouse said...

jon swift said..."I completely agree that you should link to someone you refer to, Ms. Althouse. It is certainly a violation of blogger ethics not to do so."

I link when I name somebody or quote them. Maybe some day you will rise to that level. Until then, you'll have to satisfy yourself with coming over here to self-link, you needy little man.

Trooper York said...

Ouch.

SteveR said...

Wow a trolling self-linker, no personal attributes detected in the last name either.

Simon Owens said...

"I link when I name somebody or quote them. Maybe some day you will rise to that level."

You saw fit to link to and quote the New Yorker writer who wrote his entire post based off Jon Swift's post. Without Jon Swift, Packer's post wouldn't have been written. You referred to Swift specifically in another post without naming him. Not only did you mention him, you characterized one of his posts.

For Jon Swift to be so unimportant, he sure seems to be directly or indirectly influencing a lot of content on your site; three posts in the span of a week.

Nichevo said...

Geez, Professor, what are you whining about? Y'all want the same thing. If in her calculus it is more expedient to do it this way, what's it to you? The greater good, chica, think of the greater good! What part of "advocacy" don't you understand?

Obama would understand. Imagine every puff piece on him larded with linkage to content from Wright, Ayers, Marshall, Rezko, Ahmadinejad, etc., etc., etc....why should Marcus dilute her poison with unselected content from the 'crazy mayor of Crazytown?'

Be content to be useful. Be a happy cog, not an Eggagog. Like me, they are not interested in 'the real you,' they are interested in what you can do for them (admittedly in a less physical or shall I say humid sense).

But when you have a chance, let us know whether the bus' shocks & struts are OK. Maybe you could perform an oil change. You should be in the right position.

And you want to empower this clique with your vote and your support!

Or is it that you're being compelled? I trust you have tenure, so it's not fear for your job...but your recent rationalizations are so tortured and unconvincing that it has lately occurred to me that you are phoning it in deliberately.

Pity there's no video so we can't see if you are trying to use a blink code. Maybe these protests, while couched in vanity, are a sort of "Help Me!" dog-whistle.

Alternatively, you could be trying to prove you're an intellectual...as Orwell sorta said, nobody else could believe the kind of things you've been saying.

Keep stomping this "jon swift" character, though, he obviously needs it.

blake said...

Jon Swift and his "posse" are about the neediest needers to ever need something.

Ann Althouse said...

"You saw fit to link to and quote the New Yorker writer who wrote his entire post based off Jon Swift's post. Without Jon Swift, Packer's post wouldn't have been written. You referred to Swift specifically in another post without naming him. Not only did you mention him, you characterized one of his posts."

Yeah, Packer was truly lame to rely on a post like that and I wanted to highlight his lameness since he writes in the extremely prestigious magazine The New Yorker. That blogger who smeared me on his blog is the sort of person I routinely ignore. I was presented with something of a dilemma, and I resolved it according to an ethical linking standard that I have already defended.

Ann Althouse said...

"Or is it that you're being compelled? I trust you have tenure, so it's not fear for your job...but your recent rationalizations are so tortured and unconvincing that it has lately occurred to me that you are phoning it in deliberately."

I've had tenure for over 20 years, and I think it's pretty obvious on this blog that I say what I want. I have never written a systematic, spelled-out explanation of why I'm voting for Obama and I've enjoyed criticizing him here many times, so I can see why my ultimate position is confusing. Maybe I should write a list of my reasons.

blake said...

Ann,

Yeah, and maybe you shouldn't.

Come on: Glamour!

Heh.

Simon Owens said...

Ann, I want you to really stop and think about this before you respond: Read your last comment and tell me who you're trying to convince. You or me?

You do realize that you are engaging in the most blatantly transparent shifting-of-the-goal-post imaginable, don't you? You devolve into a heightened shrieking over not only the fact that George Packer refrained from linking to you, but that he had the audacity to not first comb through the minutia of all your blog posts from the last year? And then you refer to and even characterize Swift without even mentioning his name?

It's all well and good, as you've pointed out dozens of times, it's your blog and there are no penalties for intellectual dishonesty; Google will not come tapping with handcuffs in the middle of the night. But forgive us if we find it ironic and humorous when you're sent into a frenzied fury over the fact that the Elite Journalist refused to take you seriously. Your shoddy logic thus far demonstrates the divide between The New Yorkers and the Ann Althouses in this world.

blake said...

Althouse has tapped into another Internet Freak Show.

JAL said...

Certainly, a President Obama will not nominate a conservative, but there is no evidence from his past (see account of his HLR presidency or ...selection of campaign staff) that he is going to look for a far-left candidate.

You mean the Nation of Islam staff he has?

You know, you'll remind of us that pastor, the real estate wheeler dealer, the recipients of his grants ....

Nickname unavailable said...

Getting trashed by the New Yorker? Get used to it Ann--it's a foretaste of the Obama years.

Ken said...

The so called moderate Bill Clinton blessed us with the extreme leftist Ruth Bader Ginsberg and even the "conservative" Gerald Ford gave us the lunatic John Paul Stevens. If you think Barrack Obama will not appoint judges far to the left of the American center, I've got several bridges and a lot of acreage you might want to buy. I have no idea who McCain would appoint and I certainly don't trust him to appoint any conservatives but his worst pick would probably be better than Obama's best one. If you want a Supreme Court that is indistinguishable from the Supreme Soviet, Obama's your man.

Alphonse said...

Ann, here's what I posted on the website of that grubby little conservative blogger whose misrepresentation of you was seized on by Mr Packer without so much as a link to this site so that New Yorker readers could see things for what they truly are.

Mr Swift,

Just because Ms Althouse calls you naughty words and declares you to be too low in the food chain to rate a link doesn't mean she isn't more balanced than you.

This will serve you right for deceitfully enlisting her to the anti-Obama cause. Her non-partisanship is not to be besmirched. She is a unique voice in the blogosphere AND in mainstream media!

Nichevo said...

"Maybe I should write a list of my reasons."

Before would be better than after the elections, mon chou.

BTW the dream post - you should know that dreams never mean their manifest content. Look deeper.