I am convinced—along with many academics, editorial, writers, litigators, and ordinary citizens—that if it had been Bush rather than Gore who needed the Florida recount in order to have any chance of winning, at least some of the five justices who voted to stop the recount would instead have voted to allow it to go forward—that is, they would have failed the shoe on the other foot test.
When I first made this argument in op-eds contemporaneously with the decision, I was roundly condemned by some academics who argued that criticism of the Supreme Court should be limited to the text of the decisions and should not extend to questioning the motives of the justices.
This is how I responded:
It is understandable why so many academics and lawyers of goodwill would tend to limit their arguments—both in support of and in opposition to a Supreme Court decision—to the face of the opinion and its consistency, or lack thereof, with prior opinions. First, it is difficult to prove an improper motive. Second, to go beyond these traditional modes of criticism is to risk being accused of making an ad hominem attack on individual justices, and such personal attacks are regarded as unprofessional. As Professor Cass Sunstein cautioned with regard to this case: “No one should accuse any of the justices of bad faith or trying to ensure that their man gets in.”
Well, that is precisely what I am accusing the majority justices of doing. Let me be as clear as I can: The criticism I am making of the majority justices includes a significant ad hominem component. I am not limiting my criticism merely to the intellectual or precedential weaknesses of their arguments. I am accusing them of partisan favoritism—bias—toward one litigant and against another. I am also accusing them of dishonesty, of trying to hide their bias behind plausible legal arguments that they never would have put forward had the shoe been on the other foot. These criticisms are directed at the justices personally, not only at their arguments, though it is the weakness of their arguments—and their inconsistency with prior views expressed by these very justices—that provides the probable cause for probing their motives.
I acknowledged that:
Motive analysis is largely outside the tradition of academic and professional criticism of the Supreme Court, as the admonition from Professor Sunstein suggests. Academics characterize such personal criticism as “the fallacy of argumentum ad hominem.” And it is a fallacy to try to disprove the correctness of an argument on its merits by leveling a personal attack on the person who offered the argument, since an argument offered by the worst of human beings may nonetheless be correct. But it is equally fallacious to try to defend someone against well-grounded charges of personal dishonesty, bias, or corruption by demonstrating that the argument he made turns out to be correct on its merits.
I then offered an example that proved particularly prescient in light of the subsequent Kavanaugh hearings:
An example of a proceeding at which ad hominem criticisms are entirely appropriate is a judicial confirmation hearing. Although different in some respects from an inquiry into whether a particular decision was based on improper considerations, it demonstrates that ad hominem inquiry is sometimes probative. The prior opinions of a judicial nominee who is being considered for promotion are obviously relevant, but so are his or her personal characteristics: Does he have a “judicial temperament?” Did he ever commit a crime of “moral turpitude?” Did she ever sit on a case in which she had a conflict of interest (without regard to the intellectual quality of the arguments she made in her decision)? Has he ever based a decision on favoritism toward one litigant or against another?
My two examples—the Kavanaugh petition and the majority decision in Bush v. Gore—expose the hypocrisy of important players on both sides of the political divide. Hypocrisy is the coin of the realm when it comes to partisan politics. Consistency has no role in partisan politics. Partisans simply pick sides like sports fans pick teams. They offer whatever argument helps their side, without regard to whether the opposite argument would be offered if the shoe were on the other foot. La Rochefoucauld once quipped: “hypocrisy is a tribute vice pays to virtue.” Not so in partisan politics. There is no shame in hypocrisy, no honor in consistency, no credit for principle, no reward for intellectual honesty. Just help your side whatever it takes. That is the world in which we are living.
I am reminded of the story about when President Charles Eliot of Harvard University learned that the Harvard baseball team was winning games because one of its pitchers had learned how to throw a curveball. Eliot called the coach of the team into his office and asked him if that were true. The coach proudly acknowledged his pitcher’s mastery of the curveball. President Eliot glared at him and said, “I am told the object of the curveball is to deceive the batter.” The coach acknowledged that that was in fact its object. President Eliot then demanded “no Harvard baseball player be allowed ever to throw a curveball. Deception is not a value we teach Harvard men.” I am not suggesting that partisan politicians accept President Eliot’s anachronistic rules of engagement. But partisan politics has moved so far away from any notion of a single standard that it is impossible to come up with any principle by which to judge the actions of partisans.
To be sure, there is the criminal law; however, as I demonstrated in my book Trumped Up, the line between criminal and noncriminal behavior is being challenged by both sides as they seek to weaponize the criminal justice system to their partisan advantage. The threat of impeachment, as I show in this book, has also become a weapon of first choice among partisans on both sides rather than the Constitutional safeguard of last resort intended by the Framers of our Constitution. Nothing is sacred—not the Constitution, not civil liberties, not due process, not the rule of law—when it comes to seeking immediate partisan advantage. Partisans simply don’t care if they are justly accused of hypocrisy. They blatantly and willingly fail the shoe on the other foot test in the interest of immediate partisan advantage. They don’t even seem to care that they are advocating positions that will establish dangerous precedents that may later come back to haunt their side when the shoe is indeed on the other foot. They want to win now. Let the future be damned.
The upshot of this partisan division is that we have lost the collective capacity to reason together, to argue rationally, to offer compromises, to build bridges and to acknowledge that the other side sometimes has a point. We live in a world of slogans: “lock her up,” “impeach,” “shout them down,” “disrupt their meals,” “hurl insults instead of responding to rational arguments.”
The partisan divide has become so extreme that it extends beyond politics. When I wrote an article for the Wall Street Journal in September of 2018 about the punishment imposed on Serena Williams—loss of a game in her match—for her poor sportsmanship, many of the online comments reflected the political divisions in our nation. I advocated a neutral rule applicable to all sports and all competitors:
No athletic event—not tennis, basketball, baseball, soccer, hockey, football or any other sport—should be decided by anything other than what the players do in competition.
This new approach would require significant changes in the rules of virtually every sport. No more technical fouls based on mouthing off in basketball. No ejection of players from baseball games for disputing calls. No loss of points or games for smashing rackets or calling an official a thief. No yellow or red cards for screaming obscenities at soccer referees. No penalty box for verbal taunting in hockey. No yardage penalties for touchdown celebrations.
There could still be game-deciding sanctions for hard fouls, beanballs, unnecessary roughness, or other violations that affect games or threaten injury, but not for speech or other expression.
Here are some of the comments:
Sorry Alan, there was no “injustice” done to Serena Williams. She violated the rules and got what she deserved, unlike Hillary, who was not held to account according to the rules in place. Is that what you are advocating?
…
With what we saw in the recen
t Supreme Court Hearing by the left Dem members this sort of character assassination is real … now we just need for them to unleash their MS/13Antifa types upon society.
…
Once again in the service to his congenital contrarian nature, Dershowitz demonstrates he is just an every Moron.
…
Dershowitz is clearly on a late-innings Reputation Repair Tour of late after disgracing himself back in the OJ days …
Sigmund Freud once observed that civilization began the first time a human being hurled an insult instead of a spear. That may be true because physical violence is far worse than verbal assaults. But civilization will not progress until we hurl rational arguments instead of insults. Hurling insults may incite some to hurl spears, or fire guns, or plant bombs.
It is impossible to know which is cause and which is effect, but the growing extremism on both sides of the political spectrum makes nuanced conversation nearly impossible. The extreme right and the extreme left share a common tactic: shutting down their opponents without listening to them. True believers do not need to hear opposing arguments: they know they are right and their opponents are wrong. Neither the extreme right nor the extreme left support free speech as a principle equally applicable to their opponents. Free speech for me but not for thee—that is their tactic.
Many observers have noted that the extreme left is now on the forefront of seeking censorship on university campuses. They ask: when did the change occur? The answer is that there has been no change. The hard-left has never accepted the principle of free speech. Like the hard right, they employ freedom of speech as a tactic to help themselves. I grew up during the McCarthy era when the hard-left was being censored. So, of course, they advocated free speech—because they were the victims of censorship. The famous Free Speech Movement at Berkeley was another example of free speech for me but not for thee. Mario Savio and other leaders of the Free Speech Movement had no interest in promoting free speech for their political opponents. It was a partisan tactic designed to allow them to spread their message. Now the hard right is championing free speech on college campuses because they are the current victims of censorship. But don’t count on the hard right to support free speech for the hard-left any more than one can count on the hard-left to support free speech for the hard right.
Freedom of speech is a centrist principle, generally supported both by authentic centrist liberals and by authentic centrist conservatives. Liberal centrists generally support free speech for conservative centrists as well as radicals on both sides. Centrist conservatives also generally support free speech for liberals as well as for radicals on both sides.
When I was on the national board of the ACLU back in the 1970s, my fellow board members included liberals and conservatives, democrats and republicans, all of whom had a common commitment to free speech for me and thee. We defended the rights of Nazis to march in Skokie, as well as the rights of communists to advocate their pernicious doctrines. We defended the free speech rights of pornographers, perverts, and other ne’er-do-wells. As H. L. Mencken wrote: “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
The ACLU has now become part of the problem rather than part of the solution to partisan attacks on freedom of speech. Although the ACLU continues occasionally to represent a high-profile Neo-Nazi or white supremacist, its priorities have shifted away from freedom of speech and due process toward political issues and partisan opposition to President Trump. As I will show later in the book, it now supports and opposes political candidates, referenda, and judicial nominees. Its recent shift has earned it tens of millions of dollars in additional funding from radical leftists who see the ACLU as a weapon to be used against President Trump and the Republican Party. They no longer pass the shoe on the other foot test.
In writing this book, I will be accused—as I was when I wrote Supreme Injustice—of engaging in the “fallacy of the argument ad hominem”: the fallacy that first-year philosophy students learn, namely, that arguments should be judged by their logic and persuasiveness, not by the personal characteristics of the man or woman offering them. To judge the merits of an argument by the person making it is to engage in a logical fallacy called the “fallacy of the argument ad hominem.” Ad hominem is Latin for “of the person.”
Having participated in thousands of public policy arguments for more than sixty years, I am convinced that this classic philosophical fallacy is itself a fallacy, especially in the context of public policy. In my experience, the merits and persuasiveness of a public policy argument often depend on who is making it, whether it is consistent with other arguments that person has made when the shoe was on the other foot, and whether it is motivated by partisan or other external considerations.
The shoe on the other foot test is not guilty of violating the fallacy ad hominem. It does not argue that the logic of an argument itself is weakened by the weakness of its proponent(s). Indeed, it is a corollary of the fallacy ad hominem: to the extent that anyone gives additional weight to an argument because of the credibility of those offering it, those offering it must pass the shoe on the other foot test. If they don’t, then no credibility beyond the power of the argument itself should be accorded those offering the argument.
Lawyers and law professors are accomplished at constructing persuasive arguments on all sides of an issue. They are perfectly capable of persuading listeners—and even themselves—of the power of an argument, even if they would make the exact opposite argument if the shoe were on the other foot. In some cases, they have in fact made the opposite argument without shame, embarrassment, or fear of being accused of hypocrisy. Sometimes they make lame efforts to “distinguish” the cases—to show they are not really the same.
Practicing lawyers are, of course, permitted to offer arguments that help their clients even if they have offered inconsistent arguments for other clients in other cases. But judges, professors in their role as teachers, and public intellectuals are not.
So I ask every reader of this book to take the shoe on the other foot test: to look in the mirror and ask yourself—would you be making the arguments you are making if they hurt instead of helped your cause? I ask myself that question before I offer any argument. If I cannot honestly answer yes, I do not make the argument. I ask you to do the same. Be honest with yourself. If the answer is no, and if you continue to offer the arguments as neutral, principled positions, then you have failed the test and are guilty of hypocrisy. I hope you will join me in passing the test and offering only arguments that you would be willing to offer if the shoe were on the other foot.
In the columns that follow, I try to make arguments that would pass the shoe on the other foot test. I make the same arguments I would have made had Hillary Clinton been elected president and been subject to impeachment. I make the same arguments I would have made had a Democratic president nominated a controversial Supreme Court Justice who was accused of sexual misconduct. These arguments are based on neutral principles and objective constitutional analysis. It is up to each reader to decide whether these columns pass the shoe on the other foot test.
In Defense of Equally Applying the Law and Letting Our System Work
The equal application of law is of paramount importance to a functioning democracy. When partisan politics encroaches on the legal system and influences how the law is applied, democracy begins to erode.
Our institutions are far from perfect—and you’ll find my recommendations for improving some of those institutions in the following pieces—but our judiciary and our systems of checks and balances must remain above the influence of political tribalism.
That imperative is in danger today, as partisan calls for impeachment blatantly failed the shoe on the other foot test, and created a dangerous precedent of expanding the law to serve political desires. Those who poi
nt out this hypocrisy—including myself, who made the same arguments when efforts were undertaken to impeach Bill Clinton and “lock up” Hillary Clinton—are vilified for “taking the other side,” rather than praised for defending neutral principles. The pieces that follow highlight where our politics has gotten the best of the law, and what steps we can take to remedy it.
Federal Judge Agrees Nonpartisan Commission Beats Special Counsel1
Federal Judge T. S. Ellis, a distinguished jurist from Virginia, has just written an opinion denying former Trump campaign manager Paul Manafort’s motion to dismiss the charges against him. Judge Ellis rejected the defense argument that Special Counsel Robert Mueller had exceeded his authority by investigating and prosecuting alleged crimes that preceded the 2016 election and that had little or nothing to do with Russian collusion in the election. But in rejecting this legal attack on the scope of the special counsel, Judge Ellis went out of his way to say that his decision should not be read as approving the appointment of a special counsel.
This is what he wrote:
[This] conclusion should not be read as approval of the practice of appointing special counsel to prosecute cases of alleged high-level misconduct. Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct. But in the end that fact does not warrant dismissal of the superseding indictment. The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt those checks and balances, and to inject a level of toxic partnership into investigation of matters of public importance.
The Case Against the Democratic House Impeaching Trump Page 18