Start with Ed Whelan in National Review:
So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about … policy implications.” [Update: Eugene Volokh offers a characteristically thoughtful critique of the original version of this post. In response, I have tweaked my language in this paragraph; the italicized words are new.]
The Eugene Volokh critique Whelan refers to:
The trouble with this criticism, it seems to me — even if you take the joke seriously on this point — is that of course Supreme Court Justices routinely, and entirely properly, consider “policy implications” in the sense of consequences. Let me just offer a few examples:
1. In some cases, the Supreme Court acts as a common-law-making court, or something very close to it, and there is (and should be) very little controversy about this. Admiralty law is one example. The defenses to federal criminal charges are another. (Federal crimes are legislatively defined, but the defenses are not.) The law of many federal remedies is in some measure another — consider the preliminary injunction standard, which calls for considering the consequences of granting or denying the injunction, or consider the qualified immunity caselaw, which has largely been developed with an eye towards the consequences of providing more or less liability.
[…]2. But I take it that Whelan is particularly considered about the interpretation of statutes — and let’s even focus on those statutes that don’t contain broadly recognized delegation of broad authority to judges — and of constitutional provisions (though Judge Sotomayor didn’t focus on those). Still, it’s pretty uncontroversial that even there judges should look at practical consequences. To my knowledge, all the Justices, including the strongest textualists and originalists on the Court (such as Justices Scalia and Thomas), routinely consider practical implications in interpreting statutes and constitutional provisions.
Publius (as we shall call him for now):
Volokh actually decimates Whelan’s argument. For you Whelan fans out there, it’s definitely worth a read to see him so thoroughly embarrassed. With detailed and thoughtful explanations, Volokh obliterates the idea that judges don’t do policy. It’s the definitive post on the subject.
And don’t feel sorry for Ed. He knows all this — he’s a smart guy with outstanding legal credentials. He just enjoys playing the role of know-nothing demagogue.
Publius links to Anonymous Liberal
Whelan then outs Publius:
One bane of the Internet is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks. One such blogger who has been biting at my ankles in recent months is the fellow who calls himself “publius” at the Obsidian Wings blog.
In the course of a typically confused post yesterday, publius embraces the idiotic charge (made by “Anonymous Liberal”) that I’m “essentially a legal hitman” who “pores over [a nominee’s] record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist.” In other of his posts (including two which I discussed here and here), publius demonstrated such a dismal understanding of the legal matters he opined on—including, for example, not understanding what common law is—that it was apparent to me that he had never studied law.
Well, I’m amused to learn that I was wrong about publius’s lack of legal education. I’ve been reliably informed that publius is in fact the pseudonym of law professor John F. Blevins of the South Texas College of Law. I e-mailed Blevins to ask him to confirm or deny that he is publius, and I copied the e-mail to the separate e-mail address, under the pseudonym “Edward Winkleman,” that publius used to respond to my initial private complaints about his reckless blogging. In response, I received from “Edward Winkleman” an e-mail stating that he is “not commenting on [his] identity” and that he writes under a pseudonym “[f]or a variety of private, family, and professional reasons.” I’m guessing that those reasons include that friends, family members, and his professional colleagues would be surprised by the poor quality and substance of his blogging.
But anyway, he’s right – my name is John Blevins. I recently joined the faculty at South Texas College of Law in Houston (both of which I love) after practicing for years in DC. I’m also now a recent convert to the Houston Rockets, and am enraged that Chuck Hayes doesn’t shoot more.
I thought about ignoring the whole thing – but some of you have been with me for 5 years now, so I thought you all deserved an explanation.
As I told Ed (to no avail), I have blogged under a pseudonym largely for private and professional reasons. Professionally, I’ve heard that pre-tenure blogging (particularly on politics) can cause problems. And before that, I was a lawyer with real clients. I also believe that the classroom should be as nonpolitical as possible – and I don’t want conservative students to feel uncomfortable before they take a single class based on my posts. So I don’t tell them about this blog. Also, I write and research on telecom policy – and I consider blogging and academic research separate endeavors. This, frankly, is a hobby.
Privately, I don’t write under my own name for family reasons. I’m from a conservative Southern family – and there are certain family members who I’d prefer not to know about this blog (thanks Ed). Also, I have family members who are well known in my home state who have had political jobs with Republicans, and I don’t want my posts to jeopardize anything for them (thanks again).
All of these things I would have told Ed, if he had asked. Instead, I told him that I have family and professional reasons for not publishing under my own name, and he wrote back and called me an “idiot” and a “coward.” (I’ve posted the email exchange below).
So there you have it – I’ve been successfully pseudonymous since the Iowa caucuses in 2004. During that time, I’ve criticized hundreds of people – and been criticized myself by hundreds more. But this has never happened.
And yes – I criticized Whelan rather harshly. But that’s what the blogosphere is about. Blogging is not for the thin-skinned. And you would think that someone who spends their days trying to destroy other people’s reputations in dishonest and inflammatory ways wouldn’t be so childish and thin-skinned.
Any updates on this fight, we’ll post ’em.
UPDATE: Anonymous Liberal again:
Whelan responded by publishing Publius’ real identity on the National Review website and sending him an email saying “now who’s the hitman, you coward and idiot.”
Um, it’s still you, Ed, but thanks for proving it.
It’s really difficult to put into words just how despicable and childish this behavior is. This is a man who was a Deputy Assistant Attorney General. He’s currently the President of the Ethics and Public Policy Center. And he’s acting like a six-year-old.
In his post outing Publius, Whelan claims that he is doing the world a service by “exposing an irresponsible anonymous blogger.” The entire tone of the post, however, is petty and childish. It’s clear that Whelan’s only motive is getting back at someone who was critical of him. Moreover, it is difficult to imagine someone who less fits the stereotype of a mud-slinging anonymous blogger than Publius, whose posts are invariably professorial in content and tone. Indeed, if you compare Publius’ posts to those that Whelan churns out daily at the National Review, the contrast is rather stark.
James Joyner on the whole episode.
UPDATE #2: Steve Benen
UPDATE #3: Conor Friedersdorf
UPDATE #4: Ed Whelan again
Instapundit with a round up
UPDATE #5: Andrew Sullivan
Publius thanks people for their support including:
UPDATE #6: Joe Gandelman at Moderate Voice
Sadly, No on the Whelan debate.
James Wolcott, post in entirety:
Atrios nominates this same gentleman as “Wanker of the Day.”
Some online Solomon would probably counsel that we just split the difference and regard Mr. Whelan as “a wankhole,” or “asswank.” But I fear this might lower us to the sub-basement level of chattering novelty-shop dentures in the comments section of Protein Wisdom, where “mendoucheous” is considered a nimble neologism.
Now Oliver Willis has entered the colloquy, poking Mr. Whelan with a diaper pin and calling him a “Big Ass Baby.”
Reassemble the epithets and that would make Mr. Whelan, technically speaking, an “asswankbaby,” which also sounds like the title of one those post-punk anthems that would go on indefinitely until the singer ran out of saliva. But there I go again, reminiscing.
UPDATE #7: Alan Jacobs