Assuming Genetic Racial Inferiority in the Absence of Evidence

Maybe I'm not giving Ann Althouse a fair shake, being as I don't regularly read her blog and when I follow a link it's usually to some of her more absurd proclamations (like "OMG, that feminist has boobies"), but it seems like every time I stumble across one of her posts... calling it "inane" would be to lavish it with undue praise. The latest case in point, her defense of the statement, "I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent".

Althouse's argument is, in effect, an argument in the alternative. First, "I don't see how that comment can be interpreted to mean that, as a group, African Americans are genetically predisposed to be less intelligent than other racial groups, maybe it means the opposite," and second, "Even if the speaker did mean that African Americans are genetically predisposed to be less intelligent, maybe she meant it as a compliment." The first defense is inconsistent with the plain language of the email under discussion; the second defense is, well, pathetic.

Althouse argues that it's unfair to characterize a refusal to rule out the possibility that African Americans, "on average, [are] genetically predisposed to be less intelligent" as suggesting that "black people are genetically inferior to white people" because the speaker was not saying that was the case, instead simply refusing to rule out the possibility. Althouse glosses over the fact that the speaker was defending her prior position, was unable to present any evidence to support her genetic theories, and instead engaged in a cheap rhetorical trick - reversing the burden of proof - to in effect argue that she was entitled to her beliefs until somebody proved them wrong. ("I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects.")

Althouse argues that we don't have the full context of the conversation. That's true. The person who leaked the email, whose identity as far as I know remains unknown, provided only the one email and we have to infer what else might have been said. As I understand the back story, the person who leaked this email got into some sort of dispute with the speaker and, six months after-the-fact, decided to try to damage her career - pretty deplorable. But Althouse's pretense that we can't know what position the speaker was taking - that she could have been "criticized by someone else for ruling out the possibility" that "African Americans are, on average, genetically predisposed to be less intelligent", is a demonstration of either willful or inept misreading of the email.

I don’t think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn’t mean to shy away from that opinion at dinner.... I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects.

Althouse follows up with an attack on the law school dean who spoke against the statement, first speculating on where the dean falls on the "nature vs. nurture" debate, then adding:

But consider Minow's other interpretive leap — that to be less intelligent is to be inferior. Why isn't that an even more outrageous statement than what the student [name omitted] said?

Well, let's go back to the statement at issue:

This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs and just like I think my babies will be geniuses and beautiful individuals whether I raise them or give them to an orphanage in Nigeria.

Althouse can read that passage and truly remain confused on the question of whether the speaker believed high intelligence to be a positive attribute and low intelligence a negative?

In what might be a form of anticipatory self-defense, Althouse argues the case that less intelligent people might not be "inferior". First she presents a quote from Brave New World, in which sleeping children are programmed to believe that they should be happy to be "Betas" because they don't have to work as hard as Alphas and are better than Gammas, Deltas and Epsilons... that is, the children are being programmed to accept their situation in life, in what amounts to a caste system.

“They’ll have that repeated forty or fifty times more before they wake; then again on Thursday, and again on Saturday. A hundred and twenty times three times a week for thirty months. After which they go on to a more advanced lesson.”

Althouse argues, "Betas don't think they're inferior! They are less intelligent though." Um... yeah, Ann - they accept their lot in life after their brainwashing sessions are complete. Althouse would probably have been better served by quoting J.K. Rowling's "sorting hat" story from the first Harry Potter book, because at least there it's a conscious wish to be something other than a "Ravenclaw".

Althouse next tries to save herself by quoting conservative satirist P.J. O'Rourke. Like him or hate him, I am not sure that it's possible to see O'Rourke perform without recognizing that he's an intelligent man - and that he knows it. When he writes something like, "I’m sure up at Harvard, over at the New York Times, and inside the White House they think we just envy their smarts," he's not saying it's good to be stupid - he's playing up to his audience with the caricature that "left wing elites" condescend to them and think they're stupid. Having won a Woodrow Wilson Fellowship to attended Johns Hopkins, even if with a non-scientific major, O'Rourke has little room outside of his satire to make fun of Harvard graduates as thinking themselves smart - the distinction from his fellow Johns Hopkins alums would be what?

But more to the point, the issue is not whether O'Rourke thinks of it as being good to be a C student... good, I would have to presume, for other people... With all due respect to O'Rourke's quip,

The Mayflower was full of C students. Their idea was that, given freedom, responsibility, rule of law and some elbow room, the average, the middling, and the mediocre could create the richest, most powerful country ever.

Even if we were to assume O'Rourke to have meant that as an expression of historical fact, by the time of our nation's independence the founding fathers had a very clear sense of a natural aristocracy, with any number of checks and balances imposed in the Constitution to make sure that the nation's "C students" didn't take over. Although she appears to take no offense, herself, I'll assume that Althouse has read enough of the Constitution to understand why, more than two centuries later, assertions that African Americans are inferior to whites might continue to rub many other people the wrong way. Really - Althouse thinks, "Maybe she meant it as a compliment" is a viable defense?

Further, it's again obvious from the comment on its face that the speaker views intelligence as a positive attribute. What other inference would Althouse have us draw from the assertion, "I think my babies will be geniuses and beautiful individuals" - bad is good, up is down, and she hopes that her children will be burdened by beauty and genius?

Then there's the inevitable question, why is Althouse attempting to defend the statement? Even if we assume the first defense to be in good faith, based upon a clumsy or inept reading of the contentious email, why the "It's not bad to be less intelligent" defense? Does she imagine that people offended by the original statement will read her defense and say, "Maybe the speaker thought her statement was a compliment" or "Whether or not there's a genetic component, we shouldn't see the comment as insulting because being less intelligent is a good thing"? Seriously?

Were Althouse to think about the issue of IQ and race, it might occur to her first that the value of the claim that race correlates with intelligence is of minimal benefit, because there is no valid dispute that a randomly selected African American may be more intelligent - even vastly more intelligent - than a randomly selected person of a different race, the Harvard student who authored the email or, dare I suggest, Professor Althouse herself. Second, there's no clear definition of what it means to be African American. Do we apply the "one drop" rule, in which case the assertion becomes that the genetic influence of that one drop is so profound that it impairs the intelligence of the recipient and his descendants for untold generations? If not, why doesn't intelligence more closely associated with skin color - does it need to be explained that African Americans are not uniform in color?

And wow, to assume that the genes for skin color and intelligence are somehow linked? Scientists, ranging from absolute hacks to the sincerely misguided, have spent generations pursuing dead-ends such as phrenology or other "scientific" measures of the human body in order to try to find "objective" evidence of the biological superiority or inferiority of one ethnic group or another. Need I post a Nazi illustration of the "Jewish Nose" for it to click where this brand of scientific racism can lead? Althouse finds it in some way defensible for somebody who has no evidence of her own to offer to resurrect those discarded notions while rejecting their attempt at objective measure, and simply arguing that the key correlate to genetically superior intellect is African skin pigmentation (but not the genes that lead to dark skin in other ethnic groups)?

There's an intrinsic element of racism in the assumption, based upon "personal experience", that a particular ethnic group is "less intelligent" than another - and, as she waits for her assumptions to be disproved by others, that's all the author of the email has to offer. It's a natural human tendency, but it's not even close to scientific, to see somebody from our own ethnic group struggle with a problem and attribute their struggle to something extrinsic - education level, their upbringing, etc. - while attributing the same struggle by an ethnic minority to something intrinsic - their genes. People have to train themselves, or be trained, to consider such factors as sample size and their own biases. The author of the email gives no indication of how intelligence should be measured or what measure she has applied, beyond her own assumptions, in her determination that it's possible for African Americans, on the whole, to be genetically programmed to be less intelligent.

Further, recent scientific research indicates that aspects of intelligence, even of the structure of the brain, that many have believed to be innate or fixed are in fact far more flexible than we've previously thought. Meanwhile we have identified genes that govern hair color, eye color, skin color... and there's no indication that any of them correlate to intelligence - let alone define "race".

It's interesting that although Althouse finds it horrible that people have assumed, based upon the plain language of the controversial email, that its author believes that African Americans are, on the whole, less intelligent, she plays a game with the statement of the dean who responded to the statement,

It's possible — possible! — that Minow thinks that everyone less intelligent than her is inferior, but for reasons having only to do with nurture. This must be an interesting subject for her, because she's the daughter of a highly successful man, Newton Minow (the FCC chairman who called TV a "vast wasteland"). Does she trace her high intelligence only to environmental factors?

It's also possible - possible! - that Dean Minow believes that there is a genetic component to intelligence, but not one that correlates with race. It's also possible that she recognizes the huge amount of interracial mixing in the African American community and, particularly in light of the aforementioned "one drop rule", finds the notion of a genetically based "African American" race to be absurd.

Althouse links with approval to "neoneocon" who writes,

As for me, I don’t happen to think that African Americans are genetically inferior in this arena. But I do think that banning speculation and/or research into the question is both intellectually dishonest and an affront to liberty.

We can start by noting that unlike Althouse, neoneocon had no trouble recognizing the remarks for what they were - an assertion of racial inferiority. But wait a second. Scientists are researching genes as they relate to physical appearance. Scientists are also researching genes that may be linked to intelligence, however defined. There's nothing scientific about assuming something to be the case in the absence of evidence. When you say something along the lines of, "I don't have any evidence to support my position, but until you show me proof to the contrary I'm absolutely not going to rule out the possibility that African Americans are, on the whole, genetically programmed to be less intelligent," the problem is not that you're suggesting that an answer could be reached through research.

Althouse is correct in this statement,

There is a difference between "suggesting" something is true and conceding that you don't have a basis for excluding the possibility that something is true.

For example, there is a difference between saying "Professor Althouse is an idiot" and saying "I don't have a basis for excluding the possibility that Professor Althouse is an idiot." Yet I suspect that if Professor Althouse were to hear that second statement from her peers, or to overhear it in a conversation between students, she would take offense. (I don't want to be presumptuous - I'll leave open the possibility that she would shrug and think to herself something along the lines of, "Maybe they only know me from my 'BoobGate' posts.")

Those Darn Blog Readers

Jim Lindren references an Ann Althouse post on blogging, adding,

I share Ann's affection for bloggers who are trying to observe and understand what they are writing about, rather than always writing op-eds with a thesis they are trying to prove (which is one reason that I enjoy reading her blog). Unfortunately, I find that many blog readers prefer strongly thesis-driven posts, which they can either echo or attack point by point.¹

Spare me.

If you're truly trying to think through the issues, you should be grateful to have commenters who, whether they're right or wrong, try to take your arguments apart. If your arguments don't hold up, you can rethink them for another day. If they do, congratulations. But don't go whining to me that blog readers challenge your ideas, particularly your bad ones. At least if you're pretending that blogging is an exercise in thinking.

This line of thought brings to mind the power imbalance in law school, and how some law professors relished a power imbalance that forced students to conform to their ideas (no matter how bad) in order to get a good grade. Being a law school professor is a great job for a glass jawed "intellectual". But blogging takes place in the real world, where even law professors occasionally have to take their knocks.
__________

1. (Law professors tell their students, "I'm teaching you to think like a lawyer." Most practicing lawyers are familiar with motion practice in which one lawyer submits a motion and brief to a court, strongly arguing a point of law, and opposing counsel tries to take it apart, point by point. Appeals work in a similar manner. And if you've ever had a "hot" panel when you've argued an appeal, the judges on the panel can make bloggers who try to "Fisk" your arguments look like pikers.)

Obama On Farrakhan

I didn't watch the debate, but I see that there are any number of criticisms of Obama for not being quick enough to "renounce" Farrakhan's support as opposed to merely "denouncing" Farrakhan's positions on the issues. This is being framed  by  some as a great failure by Obama and a missed opportunity by Clinton. As if Obama was deliberately avoiding rejecting the Farrakhan endorsement and the... what, three votes it might bring to his campaign?

Let's look at some definitions:

Denounce: to pronounce especially publicly to be blameworthy or evil (they denounced him as a bigot)

Reject: to refuse to accept, consider, submit to, take for some purpose, or use (rejected the suggestion) (reject a manuscript) b: to refuse to hear, receive, or admit : rebuff, repel (parents who reject their children) c: to refuse as lover or spouse

Personally, I would much rather be rejected than denounced, particularly by a presidential candidate on national television.

I suspect that Obama either believed that his statements denouncing Farrakhan's positions, and decrying them as "unacceptable and reprehensible", was responsive to the question. Who, after listening to that answer, would think, "Obama thinks Farrakan's beliefs are blameworthy (perhaps evil), reprehensible and unnacceptable. But he wants Farrakhan's endorsement." Well, Ann Althouse for one, and possibly Andrew Sullivan.

The follow-up answer boils down to, "This is America, and I can't stop him from endorsing me if he wants to." Althouse imagines this as an exceedingly clever evasion. I see it as Obama not quite grasping that Russert didn't accept his prior answer as it was intended. Whether that would make Obama a bit thick-headed or Russert a big thick-headed is a debate I won't enter at this time. But let me say, there have been a couple of occasions where I found myself being that thick-headed when examining a witness at a trial or deposition and misinterpreting their answers based upon what I expected to hear.

So on it goes, with Obama repeating his denunciation of Farrakhan's position and deeming his past statements "reprehensible and inappropriate". Althouse seems impressed that Russert then shifted into Gotcha mode - an "I see that you danced with a man, who danced with a girl, who danced with the Prince of Wales"-type question.

The title of one of your books, "Audacity of Hope," you acknowledge you got from a sermon from Reverend Jeremiah Wright, the head of the Trinity United Church. He said that Louis Farrakhan "epitomizes greatness."

He said that he went to Libya in 1984 with Louis Farrakhan to visit with Moammar Gadhafi and that, when your political opponents found out about that, quote, "your Jewish support would dry up quicker than a snowball in Hell."

RUSSERT: What do you do to assure Jewish-Americans that, whether it's Farrakhan's support or the activities of Reverend Jeremiah Wright, your pastor, you are consistent with issues regarding Israel and not in any way suggesting that Farrakhan epitomizes greatness?

If somebody is being thick-headed at this point, it's Russert. Which of the words "denounce," "reprehensible", "inappropriate", and "unacceptable" aren't in his vocabulary?

And again, it goes on and on.

Hillary Clinton, who caught Russert's use of the word reject, ultimately joins the exchange, after Russert lobs her a softball, "Are you suggesting Senator Obama is not standing on principle?" She replied,

No. I'm just saying that you asked specifically if he would reject it. And there's a difference between denouncing and rejecting. And I think when it comes to this sort of, you know, inflammatory - I have no doubt that everything that Barack just said is absolutely sincere. But I just think, we've got to be even stronger. We cannot let anyone in any way say these things because of the implications that they have, which can be so far reaching.

Althouse sees this as a tremendous lapse on Clinton's part - "near gibberish" that shows she "does not have the instinct for blood". Um... right....

Personally, I think Clinton called it as she saw it. She, along with anybody with half a brain, knows that Obama doesn't want or need Farrakhan's endorsement. So she gave an honest answer instead of distorting his comments as a twisted effort to maintain Farrakhan's useless... no, worse than useless... counter-productive endorsement. This led to Obama's clarification that " I'm happy to concede the point, and I would reject and denounce." Something I think was pretty clear from the start of the entire useless exchange.

I suspect that if Hillary Clinton had actually tried to depict Obama as wanting Farrakhan's support, and the three or so votes it would bring to his campaign (even as it drove away thousands upon thousands of others), she would have looked petty and small.

-------------

Update: From his new home at The American Conservative, Daniel Larison observes,

Ross keeps asking how the Republicans are going to attack Obama. Well, they will do something rather like this (dated 2/25). Of course, flinging the charge of anti-Semitism or of being in league with anti-Semites is the last resort of the unimaginative and intellectually bankrupt. That doesn’t mean it won’t have its intended effect.

Thinking Like A Lawyer, Take 568

Ann Althouse demonstrates how to deal with adverse arguments:

What a jerk you are insulting me when you're entirely missing my sarcasm! I'm characterizing the idiocy of the plaintiffs' lawyer. Get a clue.

* * *

You are an idiot too. Did I say Katie Couric should sue Dan Rather? Did I say that what the AutoAdmit kids wrote about the plaintiffs was just swell? Learn to read, loser.

I can't wait to incorporate these sophisticated rhetorical techniques into my next legal brief or oral argument. Application of the "learn to read, loser" technique should make my motions for reconsideration considerably shorter.

Oh, don't get me wrong. I used to use some techniques not far removed from Prof. Althouse's when playing in online forums. But I moved away from that approach during law school. I guess I'll never learn.

Teaching People To "Think Like Lawyers

Behind the firewall, today's New York Times prints "A Skull Full of Mush" from Ann Althouse. (Er... I mean it prints an editorial called "A Skull Full Of Mush"....)

Professor Althouse reminds us of the fictional Professor Kingsfield of The Paper Chase who defends his law school teaching methods by declaring "You come in here with a skull full of mush, and you leave thinking like a lawyer." She relates this in the context of a conference in which the author of that book rejected the Kingsfield approach to legal education in favor of one which allows students to develop their own narrative. (I'm not sure what that means and Althouse doesn't explain; I suspect she chose to use that particular phrase without providing any context because, standing alone, it sounds so wishy-washy. If that's the case, though, what can I say? She's "thinking like a lawyer.")

We law professors tend to worry about seeming like Professor Kingsfield. But we ought to worry less about that prospect and more about preserving and respecting our own tradition of teaching from the cases.

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.

One of the best student experiences I had in law school was being taught by J.J. White, who was probably the most like Professor Kingsfield of any professor at UM. He knew his material cold, and I had the impression that he spent more time reviewing cases and preparing for each class than did most of his students. He did instill some fear, because you knew that if he called on you and you were not prepared (or were wildly off the mark) you were likely to experience some embarrassment. Some students hated him, but I doubt that there was one who wasn't inspired to work hard and think hard. His politics were obvious, but they didn't factor into his grading.

Had every professor at UM been like him, I would have had to work a lot harder and I would have learned a lot more. Instead, I found that he represented a certain class of older professor who had high expectations for students, had a tremendous amount of knowledge and self-discipline, and wished to impart knowledge of the law. Perhaps some of the more socratically-inclined younger professors eventually develop a similar set of teaching skills, but I was left with the impression that for many of the younger set the term "socratic method" was shorthand for "I don't have to have a lesson plan or prepare for class because I can fill an hour by lobbing questions at students". Some were all about ideology, caring a lot less about whether students came to learn the material than if the students ended up sharing their perspective on the material. Which isn't to say that they're necessarily dishonest - I suspect that they believed their positions to be correct, even if the nation's legislatures and courts hadn't (and still haven't, and aren't ever likely to) come to their senses.

Is there is a sense in which learning to write for such a professor is learning to "think like a lawyer"? You either develop skill in fashioning an argument you don't agree with or you get a lower grade - and is it not true that at times lawyers have to raise potentially meritorious arguments that they don't personally agree with in order to protect the interests of a client? (See? Skip over the "potentially meritorious" part, and it's an important lesson in "thinking like a lawyer.") Well, you might be able to make that argument if the professor is intentionally grading down correct answers on the basis of ideology which, Supreme Court advocacy aside, isn't an approach particularly compatible with "thinking like a lawyer". Maybe it's a lesson in "writing for your audience" - also an important legal skill? Er, maybe I shouldn't have to work this hard to make excuses for bad, lazy teaching. In these cases it wasn't the student who had the "skull full of mush".

In retrospect, when I look at what taught me to write like a lawyer, it wasn't the wretched student-led writing program that UM then inflicted upon its 1L's. It was a clinical class in criminal appellate advocacy, taught by a practitioner. The instructor opened the first session by telling us that whatever we had been led to think constituted "good legal writing" by virtue of law school instruction was largely incorrect, and over the course of a semester demonstrated that he knew what he was talking about. It's much harder to pinpoint how I learned to "think like a lawyer", although I can assure you that not every law professor I had contributed to that process (save, perhaps, as sardonically noted above).

I'm not going to argue that "thinking like a lawyer" means you have to shut up if you don't know what you're talking about. But knowing when to sit down and shut up is a part of good advocacy - whether because you've won the point and continuing would be beating a dead horse, because you risk exposing the weaknesses of your argument if you continue speaking, or because you're starting to sound like you're being arrogant or bullying. (At the same time, sometimes being provocative is a good way to induce your opponent into overplaying his hand.) When I post here, I rarely get a good back-and-forth in the comments, but I enjoy that as an opportunity to improve my knowledge and the way I think about the issues under discussion. (Yes, folks, all rumors to the contrary aside, lawyers tend to be more argumentative than the average person, and to approach debate as something to enjoy, not something to dread. That's not something you learn in law school, but it is something that helps take you there.)

I am not sure that J.J. White ever told my class that he was going to make us "think like lawyers". (He did tell us that law firms regarded us as fungible, and he also correctly forecast that most of my classmates on the political left would prove to be "limousine liberals", casting aside plans for careers in public service for a six figure law firm salary. He was right on both counts.) Had he done so, I would have believed him. But the professors I recall hearing that from, usually as a defense of their dubious teaching methods, didn't have a clue how lawyers think. They knew how to think like a law professor, and perhaps even to think like a Supreme Court Justice they once clerked for, but that was about it. For somebody who admitted hating practice, being unsuccessful in practice, and having a whopping two years of law firm experience in which he admitted the closest he got to courtroom advocacy was literally carrying bags for a partner, to tell me he can teach me to "think like a lawyer"? That's a joke. (And, of course, it happened.)

For the most part the claim, "You're learning how to think like a lawyer," is a cop-out. It's a cover for bad teaching that can't be defended in concrete terms. My challenge for Professor Althouse: Please provide a clear definition of what it means to "think like a lawyer," and which law school teaching methods have been legitimately established to establish those skills.

Is Process More Important Than Outcome?

If you attend law school, you will encounter on exams what is described as a "theory question". I have a hard time describing theory questions in a manner that does not sound cynical, as I happen to have developed a very cynical take on them. Although ostensibly designed to test your understanding and application of legal theory, if you don't know this up front you will quickly learn that maximizing your grade on a theory question usually involves conforming your theories to what the professor wants to hear. If the professor believes that the President is too powerful and must be kept in check by Congress, that's what you write on the exam. Oh, the professor may claim that the test will be graded without respect to whether or not you agree with him, but it's a distinction without a difference - he won't grade you down because you disagree that Congress should be the most powerful branch of government; he'll grade you down because any other theory is wrong.

I am reminded of theory questions by Ann Althouse's editorial in the New York Times, A Law Unto Herself, an editorial that she would presumably grade as an "A" or "A+" if written by one of her students at the University of Wisconsin Law School. It should have been easy for her - after all, her primary areas of expertise are civil procedure, constitutional law and federal jurisdiction. Now, I'm not saying that had I received this editorial as an essay from a 2L or 3L I would necessarily have given the student a low or failing grade. But that doesn't mean it's good.

The first noteworthy aspect of the editorial is that Professor Althouse pretends to be judging the issue based solely on issues of procedure, and not on the basis of the outcome reached. And you need to look no further than her blog to see her insist that she was not approving or disapproving the outcome, and her very scholarly refutation of those who believe otherwise:

I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.

Well, gee... I'm convinced. So how might people have come to the conclusion that a law professor and expert in civil procedure was taking sides, despite her insistence that she was not? Perhaps it is their experience with statements like these:

In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208 , 41 S.Ct. 451; United States v. American Ry. Exp. Co., 265 U.S. 425 , 44 S.Ct. 560; United States v. Holt State Bank, 270 U.S. 49, 56 , 46 S.Ct. 197, 199; Langnes v. Green, 282 U.S. 531 , 51 S.Ct. 243; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239 , 55 S.Ct. 746; cf. United States v. Williams, 278 U.S. 255 , 49 S.Ct. 97. [Helvering v. Gowran, 302 U.S. 238 (1937)]

Perhaps I'm being unfair, and Professor Althouse has a long and distinguished history of attacking the many state and federal cases which assert this rule; but if this is the first time she has raised the question of how courts "ignore their obligations" by focusing on outome over proper process, it invites the question - why now?

Then there is her attack on the Judge's sentence, "There are no hereditary kings in America and no powers not created by the Constitution." Professor Althouse describes that sentence as a "juicy quotation that represents "sheer sophistry."

The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

But what the Judge actually wrote was this:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

The Judge's statement may be "juicy" when taken out of context, but all the judge is actually stating is that the President's powers derive from the Constitution. It is reasonable to assume that Professor Althouse has read the opinion she criticizes, so it is fair to assume that her misrepresentation of the quote is intentional, and it is fair to further infer that her comments are based upon her taking offense at the judge's ultimate conclusion.

Futher, there is the question, what exactly is wrong with there being a "juicy" quote in a judicial opinion? Here's a "juicy quote" that is often used and abused by pundits: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Again, I have to assume that a constitutional scholar like Professor Althouse is familiar with the rhetorical flourishes judges often choose to include in their opinions. Again, in fairness, I have not followed Professor Althouse's writings and choosing this time to speak out would only suggest partisanship if Professor Althouse has no history of criticizing such "juiciness" in judicial opinions - although her own use of quotations suggests otherwise.

In terms of substantive complaints, Professor Althouse gets off to a weak start:

Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness)

Perhaps Prof. Althouse mentors the footnote editors for her school's law reviews, such that this "carelessness" shocks her, but to me she's nitpicking, and engaging in the logical fallacy of poisoning the well. I can't help but also note that she does not condemn Chief Justice Warren for producing such a "juicy" quote in the first place.

In relation to her call for careful judicial decisions which demonstrate a concern for accuracy, completeness and impartiality, I agree with Professor Althouse.

... let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

I agree that both branches should seek to observe and respect their own obligations under the law and Constitution - and both the Judge and the President swore oaths to uphold the Constitution. But irony? Perhaps it's that we have different expectations, but from where I sit Professor Althouse is describing hypocrisy.

I disagree with Professor Althouse that a trial court decision, if poorly reasoned, sends the message that there are no good arguments in support of the outcome. I think it is fair to infer bias from her castigation, "It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush." From her claimed perch on the fence between the two sides, it is interesting that Professor Althouse finds nothing to criticize on the President's side - she seems satisfied that his oath of office and covey of advisers would steer him away from any disingenous or self-serving stance - and has a history of pecking at faults by the judge which may exist only in her imagination.

Professor Althouse also suggests that the decision represents (or, at best, can't be distinguished from) judicial activism,

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Why do I suspect that Professor Althouse spends little time reading federal trial court opinions, and little to no time reading state trial court decisions? I don't want to be the one to cause the scales to fall from her eyes, but despite its many obvious faults this is actually a pretty thorough, substantive opinion for a trial court. I don't want to paint with too broad a brush - there are many excellent trial judges who regularly write opinions which meet or exceed the quality of typical appellate court decisions. (For that matter, there are plenty of appellate decisions, often unpublished, which would make Judge Taylor's opinion look good.)

In fact, the appellate courts in some ways reward trial courts for writing cursory opinions, or no opinion at all. In Michigan, a trial court is not required to write an opinion when resolving a motion for summary disposition. A trial court which writes an opinion may well be affirmed, even if incorrect it in its analysis, under the "no harm, no foul" principle described above - it won't be reversed if it reaches the right result for the wrong reason. But if the judge doesn't pen so much as a word, simply granting or denying the motion, the chances of reversal do not appear to increase, while the chances of being corrected in the course of an affirmation drop to zero.

It's also interesting that Professor Althouse implicates judicial activism, without actually accusing the judge who penned the opinion as being activist. Again I'm with the Professor in believing that judges should take care to avoid not only bias, but the appearance of bias. But if it can truly be said that a careless trial court decision "helps those who have been arguing for years about result-oriented, activist judges," unless she's arguing that this is the straw which breaks the camel's back, this one opinion changes nothing.

Perhaps the most unfortunate part of the editorial is that Professor Althouse spends so much time focusing on style, she leaves herself with no space to address the substance of the opinion.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

Maybe Professor Althouse should have left out the "juicy" quote from Chief Justice Marshall, to give herself a bit more space to describe the law of standing, why the judge's opinion should be regarded a superficial and incomplete in relation to standing, and maybe even an opinion as to how the issue of standing should have been resolved (assuming she's comfortable climbing off of the fence). Would the Professor describe it as "ironic" if an editorial that pretends to condemn superficial legal analyses that give the impression (even if false) of partiality were itself superficial and seemingly partisan?

I guess in the end, if I were a law professor, I would be inclined to downgrade Professor Althouse's essay even though if you simmer off all of the fat and vitriol, I agree with her primary arguments for respect of the judicial process, judicial professionalism, and greater care in the drafting of judicial decisions at all levels.