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.

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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.