Thursday, August 28, 2008

Ad hominem

I agree with Mike’s post from several hours ago about Jeffrey Rosen’s defense of Joe Biden from conservatives who have faulted Biden for his handling of the Bork and Thomas confirmation hearings. Rosen refers to liberals’ “ad hominem attacks” on Bork and commends Biden for having “made clear that he would not tolerate” them. Rosen’s one example of these attacks is Senator Kennedy’s claim that “Robert Bork’s America is a land in which women would be forced into back-alley abortions.”

The point I would like to add is that ad hominem attacks are an entirely appropriate method of opposing a judicial nominee, including in confirmation hearings. Ad hominem arguments--arguments against the person--are invalid because one can’t refute an argument by discrediting the person who states the argument: the argument stands or falls on its own strength, regardless of the speaker. (Actually, as everyone knows, you can often get to the right answer faster and more reliably by evaluating the speaker, but let’s put that aside. There are circumstances in which it makes sense to rule ad hominem arguments out of bounds.) A judicial nominee, however, is a person, not an argument. Thus it wouldn’t be far off to say that every relevant argument made in the process of evaluating the nominee is ad hominem. Even a comment on a nominee’s past judicial writings or other stated positions is really relevant only insofar as it may indirectly reflect on the qualities of the person (and so, still more indirectly, on the likely qualities of the person’s future arguments). Ironically, Kennedy’s remark was ad hominem only in this weak sense. Despite the imagery, it was a comment on Bork’s stated position on Roe v. Wade, not, except indirectly, on his personal characteristics.

Of course, that the relevant arguments are all ad hominem does not imply that all ad hominem arguments are relevant. Attacks on the nominee’s singing voice or physical strength would not, for example, be relevant. A charge that the nominee had previously taken bribes to fix cases, on the other hand, would be. In the broad area in the middle, though--the nominee’s interest in pornography, how the nominee treated workplace subordinates, the nominee’s personal views on controversial issues--it should be the balance of relevance against privacy that determines whether the nominee must respond to issues raised, not a rule against ad hominem attacks.

Posted by David Gold