Bench Memos

Lack of Thought at Think Progress

There’s an old saying that when a lawyer has the law on his side, he should pound the law. When he has the facts on his side, he should pound the facts. But when neither law or facts are on his side, the lawyer should pound the attorney on other side. Think Progress’ Judd Legum has this routine down pat, as he demonstrates in his string of ad hominem attacks on my colleague Ronald Rotunda. Today Rotunda had an op-ed in the Washington Post defending Judge Roberts against phony charges that he violated judicial ethics when he failed to recuse himself in the Hamdan case. Rather than address the merits of Rotunda’s argument, Legum attacks Rotunda’s ethics (as he has before). Legum makes several errors in the process of impugning the integrity of a well-respected scholar, yet fails to offer any substantive critique of Rotunda’s views. First, he glosses over the byline to Rotunda’s article, which makes clear that, contrary to Legum’s charge, he did not work on “the exact subject of the case in controversy.” Second, while quoting a Legal Times story on Rotunda’s alleged conflict, Legum fails to note Rotunda’s response, published in the September 5 Legal Times in which he makes clear that a WSJ report he worked on military commissions was wrong: “I’m proud that I was able to work for my country. While I was at the DOD, I was not assigned to the Hamdan case. I don’t know if the DOD has any official policy regarding judicial recusal, but I know I didn’t work on that, either.” In other words, the source of the alleged conflict is simply not there. Over the course of several posts seeking to impugn Rotunda’s integrity, Legum has yet to address any of the substantive points made in Rotunda’s op-ed or his 15-page opinion letter to Senator Arlen Specter on the recusal question. As Rotunda wrote the Legal Times ” where I worked can’t affect the untidy little fact that my opinion merely quoted the case law. That exists no matter where I used to work, and it undermines any charge that Judge Roberts violated the federal recusal statute.”

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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