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Tuesday, June 02, 2009

Come Back, Little Jeffrey

As reported here and elsewhere, one upshot of the kerfuffle over Jeffrey Rosen's initial article on Sonia Sotomayor -- about which, if I recall correctly, our guest-blogger Rob Kar had something to say -- is that Rosen has sworn off blogging.  In the story I linked to, Rosen stands by his initial story, although he dislikes the headline his editors chose and wishes the story had shown more nuance; but he adds that he was dismayed by how his article was treated by people "of both ideological stripes," and says the fuss has made him reconsider blogging at all.  


I think Rosen has taken the wrong lesson from all this. 
 I'm not a great fan of the initial article (although I don't hold the headline against him).  But whether the article was good or bad is a largely separate question, in my view, from how the article was used by people on the left and right.  A piece of journalism, like a piece of scholarship, can be well done or poorly done.  I think Rosen's piece lacked some of the "nuance" that it should have had.  Moreover, as I've already written, I don't think whether a judge is nice to either lawyers in oral argument or her own clerks is especially relevant to her fitness for the Supreme Court.  Rosen makes the broader point in the NPR piece that he thought the piece was justified because temperament is an excellent predictor of judicial success, and thus, even if Sotomayor would be a fine Justice, sorting out questions of temperament would help decide whether she would be the best possible Justice.  That's fine, and it is a valid subject for reporting, although it would have helped immensely if Rosen had framed his initial article in precisely those terms rather than questioning her brightness and niceness tout court.  But it demands two more pieces of "nuance" (sort of like pieces of flair in Office Space, I guess).  FIrst, temperament is a tricky idea that may manifest itself in varied ways; a judge's treatment of clerks or advocates does not necessarily say much about how well she gets along with judicial colleagues, and thus what role she might play in coalition forming and persuasion.  Second, Supreme Court picks are not -- are never -- about who would be the best possible Justice, a question that is a mug's game and overstates the importance of any given nomination.  Presidents have other things to worry about, like the little matter of governing the nation, and a person may be the best possible nominee even if she is not the best possible Justice.

Still, all of this is about the value of the story itself.  Whether or not the story was perfect, Rosen shouldn't give a damn how the story was used by either the left or the right, any more than a scholar should care how a piece of scholarship is used by ideological friends or enemies.  Our job is not to change the world for the better.  It is, at most, to change the world for the better as journalists or scholars.  That means doing the best job we can in our given roles, not refraining from acting because we're afraid how our words will be taken.  As I've said before, if I thought some piece of scholarship I was writing would make this a worse world to live in, I would not ask whether or not to publish it; the only relevant question would be whether or not it was sound scholarship.  I hope every other scholar or journalist would say the same.  To those on the right who misused Rosen's piece to argue that Sotomayor was an idiot or shrew, Rosen's response should have been to refute them or ignore them.  To those on the left who argued that Rosen shouldn't have published the piece because it would give ammunition to the right, the response should have been the same.  Perhaps Rosen has decided that blogging is too conducive to impulsive writing.  If so, the same question should present itself whenever we are about to publish something -- is the piece good or bad.  That's the only relevant question.  I think Rosen should do a good job, of course.  But I also think he should get back on his horse.

In any event, what strikes me even more is that the real "villain" of this story, if there is one, is not just, or even primarily Rosen, who is after all a journalist.  Rosen's follow-up piece states:

Readers have asked for more information about my sources. A few weeks ago, I received phone calls from eminent liberal scholars I know and trust. These scholars closely follow Sotomayor's work and expressed questions about her temperament. They did not have axes to grind or personal agendas; they are Democrats who want President Obama to appoint the most effective liberal Supreme Court justices possible and were concerned Sotomayor might not meet that high standard. They put me in touch with others in the same situation--mostly former Second Circuit clerks and prosecutors who have argued before her--and nearly all of them expressed the same view, with exceptions I noted in the piece. None of these people would have talked to me without the promise of anonymity: some still argue before the judge, and others continue to interact with her. 


I've seen startlingly little focus on these individuals in the discussion of Rosen's writing on Sotomayor.  As usual, the focus is on the journalist and not on the sources who pushed the story on the journalist -- and, who by virtue of wanting "the most effective liberal Supreme Court justices possible," most certainly did have axes and agendas.  They are, in Rosen's account (which I have no reason to disbelieve), "eminent liberal scholars."  The word "eminent" suggests, incidentally, that they are tenured and should have had little reason to seek anonymity, and perhaps a scholarly duty to refuse it.  So let me say that any of the "eminent liberal scholars" who urged the story on Rosen are welcome to write in and tell us why they did so, why they did so anonymously, and whether acting anonymously was in tension with their obligations as scholars -- an act of politics and not of scholarship (and I insist on the difference).  If anyone has first-hand or close to irrefutable evidence about who these individuals are, they are also welcome to contact me privately (although not anonymously!), and if I think the evidence is strong enough, I'd be happy to disclose it.  I don't owe these people a duty of anonymity, after all -- and, as a former journalist, I think more reporters ought to seek to uncover other journalists' sources where those sources' identities are newsworthy.      

Posted by Paul Horwitz on June 2, 2009 at 01:34 PM in Paul Horwitz | Permalink

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Comments

Paul, thanks, these are very insightful thoughts. I think that the topic is itself quite interesting and important.

I think that we are actually quite close in our view of these matters. There are a number of scholars whose work I admire for whom I can say, "Yes, of course, that's X writing, with X's style and X's manners of expression and dissection of an issue, and with X's general view of the world -- his/her general orientation to things." I will not be able to know precisely where X will end up on the particular issue being addressed, but I may have a guess (in some cases, a fairly reliable guess).

This, I think, is what you mean when you write that normativity may be an element in the scholarly ethos, but it should not "be in the driver's seat from beginning to end." I agree entirely with this sentiment. As you say, normativity can be -- is often -- a "germinal moment" for scholarship, just a starting place from which one's ideas flower. And I also agree that there are norms of scholarship, too, which must be factored in.

But...just as the germ or the seed can always be recognized in the full flower -- indeed, sometimes as its very essence...

Thanks again for your thought provoking post.

Posted by: Marc DeGirolami | Jun 2, 2009 6:23:21 PM

Marc, thoughtful questions as always, and in this case they dovetail rather nicely with dmv's shorter comment. A couple of thoughts on these questions. I do take this view; I'm too cautious about my own limitations to say that I take it, or live it, through and through, although I try. I think there are a couple of ways of thinking about the normative question. I agree that a normative view often, although not quite inevitably, creeps into legal scholarship especially (and not just legal scholarship; legal scholars worry about this a great deal, appropriately, but normativity is hardly absent from choices that scholars in other fields make). That's true of my own work in different ways and to varying degrees. But I think that more than simple craftsmanship is involved in constraining this impulse; rather, I think there is a fairly comprehensive scholarly orientation that should kick in, in which normativity may be an element but is not the point of one's scholarship. To take obvious and perhaps too easy examples, it is properly uncontroversial to say that slavery is bad, and I wouldn't have any problem with being sufficiently fascinated and engaged by this that one decides to spend one's careers writing about slavery and its effects. But I would view somewhat differently someone who concluded that slavery is bad and therefore wrote a series of articles dedicated to the proposition that slavery was perforce unconstitutional under the pre-Civil War Amendments version of the Constitution. It's not the argument I object to as such, although I would think it wrong; it would be allowing one's conclusions to be guided simply by one's priors and letting that dictate or distort your scholarly work. Normativity might provide the impulse or germinal moment for a piece of scholarship, or a normative conclusion might follow from a piece of scholarship, but I don't think it should be too firmly in the driver's seat the whole way from beginning to end; one must allow one's work to be guided by something more than one's priors, and even something more than craftsmanship.

The other way to think about this question is a more consequentialist one -- some kind of belief that if you fulfill your role as a scholar (or journalist) well and admirably, the net effects for society will be beneficial. In a somewhat romantic way, I share this view -- just think of the benefits of atomic science! But my sense is that just how they may affect or benefit the world is a murkier question, and one that is generally beyond the ability of the honest scholar to predict; and for this reason, provided we do good work, we ought indeed to follow our ideas where they lead. That doesn't mean we can't reflect on the varied uses to which our work might be put, but we should still do the work if we are called to do so. In part you could make consequentialist arguments about why this is so. A conservative legal scholar who concludes that originalist history doesn't justify Brown might know that this will threaten to undermine originalism, but believe that it will lead in the long run to better originalism or new and different ways of thinking about Brown, originalism, conservatism, or what have you. But I think of this not just in consequentialist terms but simply as part of what we do and are obliged to do. All of this, I think, is my answer to dmv as well. It's not that I willfully am trying to or want my scholarship to make this a "worse" world, and indeed my view is that, on a wholesale rather than a retail level, scholarship (and journalism) make this a better world. It's that whether or not my work does so at the retail level is not properly germane to most of my decisions about whether to pursue that work.

One other thing. I'm not accusing anyone myself; and, while I won't police every comment, I will say, in an entirely friendly way, that I'm not looking for general speculation about who people *think* were the likely sources for Rosen's story.

Posted by: Paul Horwitz | Jun 2, 2009 4:16:20 PM

I doubt Sunstein was involved. Whatever else one may say about him or his scholarship, he's a super nice guy. It's not consistent with his character to talk crap about someone else, and (unlike other scholars) undercutting others has not been his route to success. Also, he's not (and never has been) a practicing lawyer, so he would have no particular knowledge about Sotomayor or how she compared to judges in general. The class of eminent liberal scholars might be small, but it is surely bigger than one.

Posted by: Anon Law Prof | Jun 2, 2009 3:43:32 PM

"As I've said before, if I thought some piece of scholarship I was writing would make this a worse world to live in, I would not ask whether or not to publish it; the only relevant question would be whether or not it was sound scholarship."

Really? That suggests to me a fairly twisted (not to mention disturbing) view of what it means to be a "scholar." I hope to God most of your colleagues disagree with you on this one.

Posted by: dmv | Jun 2, 2009 3:13:21 PM

Unlike Rosen's piece, great post and well-chosen title, Paul. I figure Sunstein had to be involved somehow, even if he didn't place one of the calls. He's close to both of her two principal rivals for the nomination, Kagan and Wood, a contributing editor at The New Republic, and the world of "eminent liberal scholars" is only so large. Other theories?

Posted by: Jason | Jun 2, 2009 3:04:16 PM

Another thought occurs to me, and I'd be curious about your thoughts here as well.

Ideas have consequences. They influence the world for good and bad, sometimes in clear ways, but often enough in unforeseen and subterranean ways. Should scholars reflect on that fact as they work at the smithy of their raw ideas? I tend to think that they should, that a failure to try, at least, to take the long view bespeaks the vice of falling too much in love with one's own ideas. On the other hand, I certainly have heard the argument that a scholar ought to pursue ideas wherever they may lead -- a sort of 'fiat cogitatio ruat caelum.' But I tend to be skeptical about this view. And you?

Posted by: Marc DeGirolami | Jun 2, 2009 2:52:45 PM

Paul, I enjoyed this post. I had a couple of quick questions for you about this series of statements:

"Our job is not to change the world for the better. It is, at most, to change the world for the better as journalists or scholars. That means doing the best job we can in our given roles, not refraining from acting because we're afraid how our words will be taken. As I've said before, if I thought some piece of scholarship I was writing would make this a worse world to live in, I would not ask whether or not to publish it; the only relevant question would be whether or not it was sound scholarship."

Do you really believe this through and through? Isn't there an inevitably normative component to one's scholarship? Obviously there is scholarship that drips with normativity but is sloppily done, or messianic and heavy-handed. But those raise questions of subtlety, sophistication -- of good craftsmanship.

Put that obvious treacle aside for a moment. Much of the scholarship that I admire (and that I know you admire) contains within it -- sometimes buried deep, to be sure, but always there -- a normative orientation, a disposition about the world and the way that it ought, and ought not, to be. Is this also -- this normativity -- part of the scholars' role? Part of the scholars' role at its best?

I ask these questions not in the least (as you well know, my friend) to trap or play gotcha -- I really want to know your view on this score. Is it possible to segregate out -- to partition and cabin into separate spheres -- perhaps even into separate "sovereign spheres" :) -- the various ways in which scholars -- as opposed to, let's say, social workers, plumbers, or politicians -- make the world better or worse?

Posted by: Marc DeGirolami | Jun 2, 2009 2:32:59 PM

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