Bench Memos

Exposing an Irresponsible Anonymous Blogger

One bane of the Internet is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks.  One such blogger who has been biting at my ankles in recent months is the fellow who calls himself “publius” at the Obsidian Wings blog. 

In the course of a typically confused post yesterday, publius embraces the idiotic charge (made by “Anonymous Liberal”) that I’m “essentially a legal hitman” who “pores over [a nominee’s] record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist.”  In other of his posts (including two which I discussed here and here), publius demonstrated such a dismal understanding of the legal matters he opined on—including, for example, not understanding what common law is—that it was apparent to me that he had never studied law.

Well, I’m amused to learn that I was wrong about publius’s lack of legal education.  I’ve been reliably informed that publius is in fact the pseudonym of law professor John F. Blevins of the South Texas College of Law.  I e-mailed Blevins to ask him to confirm or deny that he is publius, and I copied the e-mail to the separate e-mail address, under the pseudonym “Edward Winkleman,” that publius used to respond to my initial private complaints about his reckless blogging.  In response, I received from “Edward Winkleman” an e-mail stating that he is “not commenting on [his] identity” and that he writes under a pseudonym “[f]or a variety of private, family, and professional reasons.”  I’m guessing that those reasons include that friends, family members, and his professional colleagues would be surprised by the poor quality and substance of his blogging.

While I’m at it, I’ll respond briefly to Blevins’s latest post, which misconceives an exchange I had yesterday with Eugene Volokh about a joke of Judge Sotomayor’s.  In my post about the joke (and amidst a flurry of blogging), I initially wrote a sloppy sentence that Volokh used as the occasion for a broader discussion of the Supreme Court’s consideration of consequences in deciding cases.  Volokh included this observation:

I think criticisms of excessive judicial policymaking — and in particular, in the sense Judge Sotomayor uses the phrase in the joke quoted above, decisionmaking based on what seems to the judge to be likelier to produce good results — are often correct.

I credited Volokh for a “characteristically thoughtful critique” and tweaked my sloppy sentence so that it read as it should have in the first place:

So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions is “ponder[ing] about … policy implications.”

In reply, Volokh noted that my point was “narrower” than what he had critiqued but offered his view that “on balance [Whelan’s] criticism still isn’t quite apt.”  In fact, though, I don’t think that Volokh’s bottom line—that “Supreme Court justices are even more likely than other federal judges to legitimately consider the consequences of their decisions”—is equivalent to the assertion that considering such consequences is “what is most distinctive about” their role. 

What Blevins—I mean, “publius”—somehow takes away from all this is that “Volokh actually decimates Whelan’s argument”—the concededly sloppy sentence that I promptly revised—and that I should be “thoroughly embarrassed.”  Gee, I think it’s the guy hiding behind the two pseudonyms who evidently has reason to be embarrassed.

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