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


Neil H. Buchanan said...

Really good points. To a significant degree, personal isues matter in determining who we will trust with a life term on the highest court. In the context of a former subordinate's charges that a nominee to the Supreme Court sexually harassed her and that pornography was part of that harassment, it was wrong for Biden to limit testimony. Confirmation hearings are a job interview, not a lawsuit.

Rosen, while purporting to defend Biden, says: "Even after finally bowing to the public pressure to allow Ms. Hill to testify, Mr. Biden still refused to call three additional witnesses who were ready to corroborate her charges about his interest in pornography. ... [B]y insisting that no further witnesses be called, Mr. Biden ensured [Thomas's] confirmation. Mr. Biden later observed that he could have 'decimated' Judge Thomas by allowing more testimony about pornography, but 'it would have been wrong.'"

Just when I was beginning to like Biden . . .

Paul Scott said...

In what way do you distinguish quality of singing voice from and interest in pornography as relevant to judicial nominations?

Sherry F. Colb said...

In response to Paul's question, an interest in pornography -- in Clarence Thomas's case -- corroborated Anita Hill's account of his sexual harassment of her. In particular, she testified that he had told her that she should see a film entitled "Long Dong Silver." If he had talked about pornographic films in general (and "Long Dong Silver" in particular) with women at Yale (which alumnae from Yale were apparently prepared to testify), this has obvious relevance to rehabilitating Anita Hill's testimony from the (largely insane) impeachment by Thomas's allies. Presumably, if singing had been a part of the harassment that Hill described, then testimony about Thomas's singing voice would also have been material.

Paul Scott said...

I agree. But David Gold does not appear to. Let me be more specific. Anything, including singing, pornography, eye color, etc., *could* be relevant if it acts, as an interest in pornography would have in the case of Thomas, to corroborate some other relevant matter (propensity towards sexual harassment).

Mr. Gold, however, appears to hold some distinction between singing and pornography on their own merits. He states clearly that singing voice or physical strength *would not be relevant* but that an interest in pornography - standing on its own, apparently - *could* be relevant (though some privacy balancing must take place).

The distinction he is making places pornography in the same general category as "how the nominee treated workplace subordinates" and "the nominee's personal views on controversial issues."

I would like to know how that distinction is drawn, since, to me (and I presume to you as well) an interest in pornography is more similar to singing voice or physical strength than it is to "how the nominee treated workplace subordinates" or "the nominee's personal views on controversial issues."

David Gold said...

In fact, I don't think that an interest in pornography satisfies the relevancy test, especially when you weigh it against the privacy invasion. Nonetheless, it's plainly not in the same ballpark as quality of singing voice. An interest in (or aversion to) pornography might reflect on a nominee's likely attitudes towards a variety of issues that regularly come before the court, including privacy and freedom of speech, among others.

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