Bench Memos

Tom Goldstein, Objective Centrist Poseur

Who would have thought that Tom Goldstein, of all people, would complain that “when the press is called on to analyze a nuanced question like the views of a Supreme Court nominee, it’s always so much simpler to quote an analyst”?  Isn’t that a large part of how he’s acquired his reputation?

In a ridiculous post, Goldstein complains that my “extreme views” on Elena Kagan “are starting to leak into the media, reported as if they were objective commentary.”  (He pairs me with Glenn Greenwald, whom I’ll leave to fend for himself.)  What are my “extreme views” on Kagan that Goldstein objects to?  And where have they been reported as “objective commentary” (whatever Goldstein imagines that phrase to mean)? 

Goldstein alleges that I’ve been going after Kagan with “both barrels.”  I think that I’ve done a grand total of four posts on Kagan since Justice Stevens announced his decision to retire.  Goldstein doesn’t trouble himself to link to more than one of my new or archived posts on Kagan (some of which include favorable material), and the only passage of mine that he quotes (without noting my express exceptions for national-security and executive-power issues)—“there’s no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist”—is from a post yesterday dedicated to highlighting the Left’s criticism of Kagan.  Goldstein ends up saying that my assessment of Kagan in that passage is “probably exactly right.”  So what’s he complaining about?

Goldstein contends that “[t]here is no less substantive phrase in the law today than ‘judicial activist’; it just means someone who reads the law differently than you.”  As it happens, I debated Goldstein on this very topic at Stanford last fall, and I offered and defended my substantive understanding of the phrase.  I certainly don’t recall Goldstein making headway in establishing the proposition that he so breezily asserts in his post.

Goldstein is concerned that some newspaper readers might not know that I am (in his phrase) “as committed a conservative author on these questions as there exists in America.”  It sure seems to me that reporters routinely identify me as a conservative.  I’d bet that it’s far more often that Goldstein gets quoted without having a political label attached to him.  Perhaps he really is a centrist.  Perhaps he just finds it advantageous to pose as one.

Goldstein spends most of his post trying to discredit Greenwald’s critiques of Kagan from the Left, so perhaps he’s trying to build credit with the Left—and to seem evenhanded to centrists—by engaging in his empty attacks on me.

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