Here's why I think Tom Goldstein posted on Lexmark
Without belaboring the topic too much (it's been beaten or nearly beaten to death in the comments on my last post) here's why I think Tom Goldstein posted on Lexmark.
I don't think Goldstein was subjectively motivated by a desire to embarrass Lexmark or its attorneys, even though that was a foreseeable result of his posting. Adopting the suggestion of Goldstein defender "Jack Elsehow," I think Goldstein posted on this because it was related to the Supreme Court and it was "interesting."
I concede it was related to the Supreme Court and was "interesting." But there is much related to the Supreme Court that is "interesting" which Goldstein does not cover: for example, as one commentator has noted, the criticism of the anonymous law clerks who served as sources for the Vanity Fair article which SCOTUSblog hosted for Vanity Fair.
That Goldstein would rummage about the vast array of "interesting" tidbits related to the Supreme Court and post on this particular topic, especially using a "teaser" title focusing attention on attorneys who blew a $100 million case by filing a cert. petition late ("There but for the grace of God") still strikes me as problematic. As no one has disputed, it wasn't related to anything posted earlier on SCOTUSblog; in particular, it wasn't needed to correct an earlier post. It was merely "interesting."
Goldstein's comment of June 19 on my post provides little support for a contrary conclusion, although I certainly thank him for commenting on this blog, and welcome any future comments he might wish to make. "Jill Elsehow" has ably lampooned Goldstein's comment, so there is little need for me to remark further. I agree it is ridiculous to think Goldstein's post on Lexmark can be explained as a product of a desire on his part to help boost Lexmark's stock price by helping spread word of the incompetence of its lawyers in filing a cert. petition late, to ensure word of this reaches those Wall Street traders who read SCOTUSblog but do not read Business Week.
Goldstein's main aim seems to be to leave the reader with the impression Lexmark doesn't mind a post such as his, and might actually like it. I do not share that impression. If such an impression actually has taken hold in Goldstein's mind, then one would certainly look forward to a Goldstein edition of How to Win Friends and Influence People, which would make for interesting reading.
My bottom line explanation is that without given any thought at all to how Lexmark or others would view this post, Goldstein made it simply because it struck him as "interesting," and for no other reason and in service of no other agenda. It was merely a product of poor judgment, not affirmative malice
I don't think Goldstein was subjectively motivated by a desire to embarrass Lexmark or its attorneys, even though that was a foreseeable result of his posting. Adopting the suggestion of Goldstein defender "Jack Elsehow," I think Goldstein posted on this because it was related to the Supreme Court and it was "interesting."
I concede it was related to the Supreme Court and was "interesting." But there is much related to the Supreme Court that is "interesting" which Goldstein does not cover: for example, as one commentator has noted, the criticism of the anonymous law clerks who served as sources for the Vanity Fair article which SCOTUSblog hosted for Vanity Fair.
That Goldstein would rummage about the vast array of "interesting" tidbits related to the Supreme Court and post on this particular topic, especially using a "teaser" title focusing attention on attorneys who blew a $100 million case by filing a cert. petition late ("There but for the grace of God") still strikes me as problematic. As no one has disputed, it wasn't related to anything posted earlier on SCOTUSblog; in particular, it wasn't needed to correct an earlier post. It was merely "interesting."
Goldstein's comment of June 19 on my post provides little support for a contrary conclusion, although I certainly thank him for commenting on this blog, and welcome any future comments he might wish to make. "Jill Elsehow" has ably lampooned Goldstein's comment, so there is little need for me to remark further. I agree it is ridiculous to think Goldstein's post on Lexmark can be explained as a product of a desire on his part to help boost Lexmark's stock price by helping spread word of the incompetence of its lawyers in filing a cert. petition late, to ensure word of this reaches those Wall Street traders who read SCOTUSblog but do not read Business Week.
Goldstein's main aim seems to be to leave the reader with the impression Lexmark doesn't mind a post such as his, and might actually like it. I do not share that impression. If such an impression actually has taken hold in Goldstein's mind, then one would certainly look forward to a Goldstein edition of How to Win Friends and Influence People, which would make for interesting reading.
My bottom line explanation is that without given any thought at all to how Lexmark or others would view this post, Goldstein made it simply because it struck him as "interesting," and for no other reason and in service of no other agenda. It was merely a product of poor judgment, not affirmative malice
posted by Unknown at 11:57 PM
28 Comments:
This is all very nice. But where's the new substantive post dealing with a SCOTUSblog post by someone other than Tom Goldstein that you promised over a week ago, on June 17? I find this thread dealing with a relatively minor post by Tom Goldstein rather tedious.
http://www.scotusblog.com/movabletype/archives/2005/06/new_cert_petiti_2.html#comments
Try this one for an anti-Goldstein post.
Goldstein & Howe posts that they've filed a cert petition on what is probably the most irrelevant circuit split in existence. Even though 9 circuits have weighed in on the issue, none has taken it en banc, and the Supreme Court has let the split "percolate" for 15 years... most likely for the simple reason that no one cares.
Amy Howe almost never posts... this is probably why.
Maybe someone else has negative info on her, but I have no problem with Howe. From everything I know about her, she seems like a smart, competent, straightforward person.
I feel sorry for her in having hooked up with a guy like Goldstein. Despite her best efforts to control him, Goldstein apparently can’t help being the sort of shoot-from-the-hip guy who draws negative attention that ends up hurting everyone associated with him.
What was the attraction? Oh, I know. His great looks. And that animal magnetism of his. Probably not his reading and writing skill level.
I don’t read anything into Howe having posted about the new cert. petition, except perhaps that she might be posting in the future more on firm-related matters instead of Goldstein, as it seems people are taking a shot at him every time he pops his head up and says anything even remotely questionable. Better to try to minimize the taint on the firm's business by having Howe post on new filings.
Fascinating post, Mr. Luthor, and great name.
I'm always curious about who Goldstein is hanging with and mentioning on his blog. So I wondered: who's the legal genius that didn't make either motion you mentioned to preserve the rights of his client, without the need to hire Goldstein to try to make a U.S. Supreme Court case out of it?
Well, he's mentioned in the SCOTUSblog post, and listed on the cert. petition: Richard C. Angino of Harrisburg, Pennsylvania.
All you need to know about Dick's intellect is that this is the first sentence on his home page: "Richard C. Angino distinguished himself as a student athlete at Duquesne High School and Franklin & Marshall College." Don't believe a grown lawyer would have something so stupid on his home page? See here. As far as intellect, a perfect match for Goldstein.
Of course, even dumb-jock lawyers can preserve the rights of their clients if they work extra hard at it. But apparently Dick was too busy working with his wife to rack up more tax deductions on their country house, which they call a "resort." See here. With Dick writing off on his taxes a full-time staff of 15-20 people for the past ten years just to keep that personal residence in tip-top condition, it looks like the feds have taken quite a bath, so maybe they should look into this.
Sorry! I forgot. It's a "resort," not a personal residence." Never mind.
Oddjob goes too far in running down Angino. He has a case with some complicated procedural issues, and he hired a well-known specialist to handle it for him in the U.S. Supreme Court. Maybe the petition's weak, and maybe he could have hired someone better than Goldstein, but Angino's handling the case in a more serious way than most lawyers would handle it.
Plus, at least give him credit for having a comprehensive biography/C.V. on his website. Like Goldstein, Angino didn't attend a "top 25," or even a "top 40," law school, but he doesn't hide that.
Compare www.goldsteinhowe.com, where Goldstein doesn't include a C.V., or anywhere mention the low-rated law school he attended. Unlike Angino, Goldstein is highly selective in what he mentions of his background, producing a distorted picture. For example, he mentions the large number of Supreme Court cases he's argued, without mentioning he's lost the vast majority of them, and typically he loses unanimously. One would have to dig to find out that information; for example, I doubt it could easily be gleaned, if it could be gleaned at all, from Goldstein's posts about his cases on his blog.
Am I the only one who thinks a) the posts here suck but b) the comments are extremely interesting?
The blog makes me wonder: If SCOTUS clerks think so lowly of Goldstein, then why do they recommend in their cert. memos that the Court grant cert. in his cases? It's not like some of his cases wherein cert. had been granted are screaming for resolution. Why hasn't there been a counter-movement?
It might be off topic (but then, when has that stopped any commentator on this blog?), but even staying off SCOTUSblog and this blog all weekend, I was unable to avoid inane comments by Tom Goldstein.
Saturday night (7/2) I happened to be watching the CBS evening news, and Goldstein was on it. It was a story about Justice O'Connor's career, and Goldstein was only in a talking head shot, but still, this is pretty big time. Goldstein met the minimum requirements for the segment, in that he held his head up and talked, but that's just about it. I think he would have ended up better if he had just smiled at the camera and kept his mouth shut.
For those who didn't see it, I'm not sure I can adequately describe how inane what Goldstein said was, and how he looked saying it. Picture a geeky-looking balding nerd in a rumpled suit, sitting with terrible posture, staring into space, at a 45-degree angle from the camera. He's summing up his theory of O'Connor's supposed ideological consistency in her two decades on the bench. Goldstein's making his point using gestures, except they're exactly wrong for what he's saying.
Goldstein streches his arms in front of himself, about a foot apart. His left hand is in a fist. That left fist, you see, represents Justice O'Connor. With his right fingers, Goldstein points at his left fist -- that is, at Justice O'Connor. Then, moving his right hand, fingers outstretched, to his left, toward that left fist, he says: "Even as she stayed here, the Court moved . . . ."
Goldstein never finishes his sentence. He just trails off into silence, staring blankly into space. You can almost see him thinking: "Oops! My right hand is the Court, and it's moving to my left. That's exactly the opposite of what I was trying to say! I was trying to say that as the Court moved right, she stayed put. But I can't say that, because if I do, people will ask why, then, I've moving my hand left. I guess I'd better just shut up before I get into more trouble. Hope none of those commentators on Anti-SCOTUSblog sees this!"
I was going to give Goldstein a pass on that, because anybody can screw up a metaphor, or speak a stupid sentence or two, but then in reading Bashman's blog I ran into another quote from Goldstein in which he was again pushing his theory of O'Connor's ideological consistency, and screwed up the metaphor he was using even worse.
It was in an LA Times story (also 7/2) you can find here: http://www.latimes.com/news/nationworld/nation/la-na-legal2jul02,1,7194387.story.
Here's what Goldstein is quoted as having said about O'Connor: "It's easy to lose sight of her conservatism. She is a moderate in the present sense, but not in modern historical terms if you look at the last half-century. The country has a view of her as more liberal than she was because the goalposts moved so far to the right."
In this new, hopelessly bungled metaphor, the Court is no longer Goldstein's right hand, moving left. Instead, it is now "goalposts," which are moving in the proper direction -- right. Except that the whole picture makes no sense at all.
As anyone who actually knows how to use the English language will readily recognize -- probably all readers of this blog other than Goldstein -- speaking of "moving the goalposts" is inappropriate when one is describing social or legal trends, e.g., the Court becoming more conservative when more conservative justices are added. Instead, this is a reference to someone cheating, or at least someone setting things up to try to claim a better result than actually obtained, by "moving the goalposts" -- changing the definition of success after the game has started, or maybe even after it is done. See, for example, here:
http://www.usingenglish.com/reference/idioms/move-the-goalposts.html,
http://www.idiomconnection.com/sports.html.
So even doing my best to avoid any statements by or reference to Goldstein this weekend, I witnessed two totally idiotic quotes from Goldstein in one day, each totally screwing up his metaphor of choice. What did I do to deserve this?
Amusing as Goldstein's use or misuse of metaphors may be to some, the substance of the position Goldstein was articulating is what's really troubling -– at least given his claim that he’s acting in the capacity of a neutral expert commentator on matters related to Supreme Court nominations. Goldstein's claim that O'Connor stood still, while the Court as a whole moved right, is flat wrong, and further evidence of the liberal bias on the blog.
As Stuart Taylor has recently explained (http://nationaljournal.com/taylor.htm), four of the last six justices appointed by a Republican during the past three decades have drifted left, including O'Connor. I note this not in any pejorative sense, but purely as a descriptive matter. It can be debated whether her drift and the drift of the others was justified, or wise, or good for the country. The drift left itself cannot reasonably be debated. To the best of my knowledge, Goldstein has not set out on his blog any explanation of what facts he is relying on for his statement about O’Connor not having drifted left.
The reason I see this is additional evidence of liberal bias on SCOTUSblog (in addition to the ACS membership of most SCOTUSbloggers I noted earlier, and SCOTUSblog having hosted the Vanity Fair article based on leaks from liberal clerks attacking the conservatives) is that, as Taylor notes, that O'Connor ended up drifting left is a strong reason for Republicans to push for a firmly ideological, proven conservative. Goldstein and his fellow SCOTUSbloggers do not want such a person on the Court (Goldstein favors people like Roberts and McConnell), and hence his pushing the "O'Connor stood still" theory, which has no factual support, helps undercut an argument favoring the nomination of a firmly ideological conservative.
Something new please...
What is the controversy surrounding what happened in Nike v. Kasky?
LL is giving one side of a debate in biglaw appellate practice about Goldstein. He's controversial. AU grad, bailed on biglaw, decided to set up a SCOTUS practice, and became a press darling. He's not the greatest, and not the worst. The idea he's not up to it is stupid -- Stanford and Harvard hired him for a reason. I don't know about LL's claim about Nike and what the clerks thought about it, but the lead lawyers in the case were Tribe (who argued) and Dellinger, not Goldstein. And no one seriously believes that the students write the petitions -- they read just like the ones he wrote before he started teaching. He finds these pro bono cases that are basically automatic grants. He got slayed last term, then turned around this year and got five to say that you can have a disparate impact claim under the ADEA (a big surprise), won the ADA ships case (not that surprising) and lost the cable modem case (again, no surprise, but supposedly a great argument). Most of his paying cases get denied? Same for my firm, and every firm. The guy went out on his own, works out of his house, blogs, gets a bunch of hot-shot summers, argues three cases every year, and now biglaw lawyers like us take shots at him.
I have been too preoccupied with other matters to post, but here are two quick points on recent events.
First, this most recent comment of "Anonymous" is quite cogent. In the comments there have been various theories expressed of who's been commenting and why, such as members of a right-wing conspiracy, people affiliated with the National Review, and/or current or former law clerks on "Greedy Clerks." I don't plan to devote much attention to these various theories, but I want to second the notion of "Anonymous" that at least some of the comments may reflect jealousy by lawyers who feel they are better qualified than Tom Goldstein to practice in the Supreme Court, but whose practices are not as extensive (or nonexistent). Some of these lawyers may have clerked, possibly even for the U.S. Supreme Court, and they might have knowledge of Goldstein based on clerking, but the primary motivation for their comments would be practice related, not clerking related.
In a way this suggestion is a compliment to any commentators who do fall into this category. For example, some of the comments by "Oddjob" and "Lexmark Luthor" are made in a very persuasive, clearly written way (assuming the facts are correct, which I can't address), in the way a biglaw lawyer taking shots at Goldstein might do. Based on the content, such comments deserve attention even though some might take a dim view of the motivation behind such comments, if jealousy, or a desire to discredit Goldstein in hopes it will leave more business for others, is part of the motivation.
And by the same token such comments are in a way a compliment ot Goldstein. If he was not a legal figure of some importance, people would not bother to take shots at him.
I would be the last to suggest the commentators are commenting as some sort of public service, so readers can and should reasonably take into account their possible motivations, for example, as suggested by "Anonymous."
Second, today there has been substantial criticism, at least on Volokh here, and on Redstate.org here, of Goldstein taking the rather extraordinary step, at least compared with accepted practice in the Blogosphere, of deleting a couple of posts relating to whether Chief Justice Rehnquist would retire, which was done about 5 p.m., just when it appeared that these SCOTUSblog predictions might be wrong. People were bothered that "the SCOTUSBlog people seem to be trying to erase any trace of their predictions," trying to rewrite history. As one commentator stated: "With a respectable blog, I expect them to leave their post, especially when they go out on a limb and make predictions, and simply update it later if their predictions are wrong."
My contribution to this discussion, for whatever it's worth, can be found here and here. As indicated, I expect to post further on this on this blog, and on a SCOTUSblog post by Marty Lederman that I had initially planned to discuss, and then decided not to, and now in light of today's events have decided to discuss after all.
Welcome to all the new readers from Redstate.org. I hope you'll comment if you find this blog of interest, either the SCOTUSblog effort to rewrite history, or on other topics.
Here are Lederman's (impressive) credentials:
http://www.law.georgetown.edu/curriculum/tab_faculty.cfm?Status=Faculty&Detail=2134
For busy readers who've merely skimmed over the last lengthy comment, here's a 25-word summary of the latest theory about this blog, from Tom Goldstein himself:
"Anti-SCOTUSblog is a black blog op in the flame war that I started with Ramesh Ponnuru and friend(s), which shows no sign of abating."
I'm sure Goldstein meant well in Google-bombing Ponnuru to start that flame war. "The road to hell is paved with good intentions," said a Goldstein homie a few months back. Maybe he was talking about Goldstein.
LL, please tell me about Goldstein's "lack of candor ... in briefing the Nike v. Kasky case?"
If someone wants to set up a whole blog for launching baseless attacks on Tom Goldstein, I guess no one can stop them. But don't pretend it has anything to do with SCOTUSblog.
Um . . . LL, aren't you being just a bit monomaniacal about Tom Goldstein? This blog's supposedly about SCOTUSblog, not Goldstein per se. Your comments have virtually nothing to do with SCOTUSblog. Maybe you don't care, but you're helping create the impression (which might well be reality) that the whole thing's a fraud. Counterproductive, no?
Starbuck, as you'll learn once you take Evidence, what LL is doing is called, "impeachment." The stated purpose of SCOTUSblog is a platform for Goldstein to shill for business. Thus, he promotes himself and his firm on SCOTUSblog by showing everyone how many cert. petitions he's filing.
LL's, in impeaching Goldstein's credibililty, is showing that nothing on SCOTUSblog should pass without scrutiny.
Again, this might not make much sense to you now. But trust me, after you take Evidence (or study it for the bar), you'll understand.
I've had evidence and understand impeachment. In theory, you have a point. However I see no evidence LL has any interest in SCOTUSblog. He's just obsessively attacking Goldstein, and the obsession is quite plain.
Therefore, as a practical matter he's undermining this blog by making it about Goldstein personally, not about posts on SCOTUSblog in general. People might read an anti-SCOTUS blog, but probably not an anti-Goldstein blog.
I'm suggesting if he has an interest in people reading this blog, LL should tone it down, and he also should discuss SCOTUSblog itself.
Plus, LL's dwelling on small, even trivial, points. I don't see him points seriously undermining Goldstein's credibility. If anything, they're simply generating sympathy for Goldstein. They've counterproductive by any measure.
It would help if the blogger in charge would actually post something new about SCOTUSblog, which from the top comment above he apparently promised some time ago.
Don't understand the comment about a Goldstein "homie." Please explain.
The "homie" comment was about something I heard in a class awhile back. Inside joke.
CC, new post, please?
Yeah CC, lie some more, and asap, please!!
Cowboy, how can one make a guest post?
I know who you are. I know what you did last summer.
Looks like they scared Cowboy off. Maybe his cover's even blown. He sure liked talking tough. Good riddance.
Cowboy? Hello? Anybody there? Check your e-mail, please.
If you quit blogging because someone threatened you, that could be extortive conduct. You might be able to do something about it.
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