Monday, March 07, 2005

Could this be the end?

Having promised to come back to Ponnuru’s further replies, I decided to reflect on the whole episode for a couple of days before writing again. I was tempted to run through his posts sentence by sentence, but will satisfy myself with just three points. (Control your sorrow, both of you.)

First, Ponnuru complained pretty bitterly that my post on SCOTUSblog – which said that Ponnuru’s article was silly because it tried to make a mountain out of a molehill – refused to address the substance of his allegation that Tribe had engaged in scholarly misconduct. So I tried to answer Ponnuru’s complaint by looking seriously at that allegation. Since then, Ponnuru has not defended either the substance of the claims or his view that they demonstrate academic misconduct. Until his most recent posts, all he had was invective (plus the occasional [welcome] grammar lesson). I think that’s telling. Ponnuru has said repeatedly that he disagrees and any inference of any concession by him is wrong.

Second, as I’ve said before, I do think that in this exchange, Ponnuru has not just resorted to invective as a substitute for substance but has used too many rhetorical slights of hand that deprive his readers of context. In addition to the examples in my previous posts, Ponnuru now seemingly wants readers to believe I’m belittling him personally rather than dealing with substance. (This is pretty ironic.) Ponnuru writes that I have announced that “[t]here have to be ‘consequences’ for [Ponnuru’s] ‘reputation’ and ‘credibility’ after the terrible things [he’s] supposedly done,” when in fact I wrote that Ponnuru had written his article in the hope that there would be consequences for Tribe’s reputation, and further that there might be consequences from my far more meager reputation or Ponnuru’s reputation. Ponnuru also writes that I “commented that he had never heard of me before my article. I'm a nothing! A nobody!,” when in fact I wrote that “I’ve never heard of Ponnuru, just as I assume he’s never heard of me.”

Third, I’ve taken very much to heart all the internet commentary and emails on the subject – except those from the lunatic fringe on both sides of the political spectrum that don’t come with any substance – and here are my three conclusions for what they’re worth.

A. Here are my thoughts on the substance of Ponnuru’s article. (The point of this paragraph isn’t to repeat my views on the subject, but just to tell you where I came out in the end; Ponnuru obviously disagrees, and no one should expect him to respond to this.)

I think it was an advocacy piece that made a very serious allegation that was false. I haven’t focused previously on the “advocacy” part of it, which some may think explains some of Ponnuru’s rhetoric – this wasn’t, after all, an article in the Wall Street Journal. But by the same token, Tribe’s article was in the Green Bag, not the Harvard Law Review, and it was about how his father’s death affected his first Supreme Court argument. I’m not sure why one should be held to some greater level of scrutiny than the other. To the contrary, as I’ve said, if you want to attack someone’s personal integrity, you should hold yourself to a high standard.

As for the rest, I think the falsity of Ponnuru’s claim stems principally from the fact that Ponnuru (who isn’t a lawyer) simply didn’t understand that the section of Tribe’s brief on the Ninth Amendment – which is where Tribe’s Green Bag article says the argument was made – actually was about the Ninth Amendment. Just to preempt his next post, let me make clear that my point isn’t that Ponnuru lacked the intellect to understand it. (The comment by “Steve” to my second post on this blog has it right in looking at Tribe’s brief. “Eric” responds here ( pretty thoughtfully but I think incorrectly because counting references to “Ninth Amendment” – which is what Ponnuru did as well – doesn’t accurately capture the brief.) Ponnuru’s remaining claims in his article – about, e.g., the jurisdictional statement, the reply brief and the oral argument by Tribe – are to my mind misleading for the reasons I described in my analysis (including in misquoting the argument and misrepresenting its conclusion) but they in all events amount to Ponnuru’s elaboration on a false premise: that Tribe misstated the contents of his opening brief in Richmond Newspapers. And I also stand by my view that, even if you agree with Ponnuru on the substance, Ponnuru’s article blows the whole thing far out of proportion; a snarky blog post would have been about right.

B. It is incredibly difficult to have a serious discussion on the internet. A number of people have characterized this as a “flame war” when I seriously tried not to respond in kind to Ponnuru’s calling me silly, dishonest, and stupid.

Relatedly, on the net, views are generally deeply entrenched; any acknowledgment that someone who seriously disagrees with you has any kind of point is taken as a sign of weakness to be avoided. In the course of this discussion, I tried to listen carefully to the many genuine comments I received, and on the basis of them (a) acknowledged that I couldn’t substantiate my view that Ponnuru was gunning for Tribe in advance of a confirmation when it was equally plausible that the piece reflected enmity and doubt for liberal scholars, (b) acknowledged that I was too engaged in this debate to necessarily trust my own sense that I wasn’t being a Tribe partisan, and (c) acknowledged that I had crossed a line in buying the Ponnuru web-links. I don’t doubt that some people took those three instances to reflect – and others will say incorrectly that this post admits – some deeper flaw in my analysis of Ponnuru’s article. In fact, I take very seriously thoughtful commentary and think it’s important to recognize when I’m wrong. I hope that characteristic means that readers will take me seriously when I say that, so far as I can tell, it seems clear that Ponnuru’s article was flawed and silly from the get go.

C. If you take on someone in a charged atmosphere on with respect to an issue (here, judicial confirmations, with the further backdrop of Tribe’s role in the Bork confirmation fight), you have to be prepared to be the target of unbelievable hostility and ignorance. I got a bunch of singularly nasty emails. (FYI, for those of you who wrote that my partner should flee the practice, she’s kind of stuck with me.) Someone set up a fake web-site and sent out emails claiming to be from me. (This is apparently the same person who previously set up a fake Tribe web-site and sent out fake emails to, among others, Judge Kozinski.) Some other person on Greedy Clerks announced that I generally lose Supreme Court cases. (FWIW, I’m 8-8, including 4-4 against the SG, in cases I briefed, which isn’t so bad for private counsel; and I don’t think I’ve either won or lost a case at the argument.) If Ponnuru received some of the same raw hostility, I think that’s deeply regrettable.

On the other hand, you will get moral support, some very private and some very public, including from some people that you don’t know. But in general, you have to be prepared to be slammed by a fair number of people who don’t know what they’re talking about, and you have to trust that others won’t take unsubstantiated anonymous claims too seriously. By the same token, when people who do know what they’re talking about think you’re wrong, you need to be prepared to acknowledge that fact.

* * * *

I said in an earlier post that what I’d written comes across as more “holier than thou” than I really am about all this. That seems to bear repeating. I don’t have any unique expertise on the things I wrote about, but I do think that these debates are worth having.

UPDATE: I should have made one other point. In all my email correspondence, and all the comments I saw here, on SCOTUSblog, and on other blogs, I never saw anyone express anything other than respect for Ponnuru for his writing in the past -- including a number of people who believed he was wrong on this one question. I personally found that meaningful.