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."
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!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.
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.
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.