My comments on the comments, and more on my plan for this blog
Thanks for the many initial comments. I'm not going to try to justify this blog, or my anonymity. Anyone who objects should pass on reading it.
Nor am I going to try to summarize or react to all of the comments, positive and negative. Some of them react to earlier comments, and there's a running debate among some of them, so I'll leave it at that (unless I later pick some points out of them to elevate to main posts). I've selected the blog option which makes comments appear on a separate page rather than in a popup window, so anyone interested in reacting to any of the comments on his or her own blog can easily link to the comment page and attack, endorse, or expand upon any comments that are of interest.
No, the point of this blog is not to engage in personal attacks on Tom Goldstein. If people want to assume otherwise, there's little I can do to disabuse them of the notion, so I don't plan to expend energy on it. To the extent it may actually be relevant to analyzing the substance of the posts on SCOTUSblog and its "sister blog," the Supreme Court nomination blog, I do reserve the right to discuss the public record of anyone who posts on those blogs. I have no interest in their private life.
No, the point of this blog is not to belittle the "Anti-Becker-Posner Blog" or, especially, Howard Bashman (I greatly appreciate him mentioning this blog, and if he would kindly tell me where the anti-SCOTUS is located, I would be more than happy to dispatch a correspondent to cover its decisions). Rather, as I said in the initial post, this blog was inspired by a negative reaction I had to some SCOTUSblog posts, plus the "Anti-Becker-Posner Blog" which I saw mentioned on the Becker-Posner Blog itself, plus Howard Bashman's very apt reference to problems presented by SCOTUSblog's recent foray into the Supreme Court nominations area. It's that simple. Yes, I did cut and paste a lot of content from the "Anti-Becker-Posner Blog," but only because I thought it was good content, not because I was trying somehow to belittle it. I plead guilty to being lazy and uninventive. Why waste time reinventing the wheel?
In each post on this blog I'll try to pick out one main point made by a commentator, or one point I've thought of myself, related to SCOTUSblog or its "sister" blog, and throw it open for further comments. Sometimes I'll have no clue why something's posted on SCOTUSblog, and I'll ask for reactions (as in the first post I anticipate making), and sometimes I'll have a definite viewpoint I'll ask readers to either attack or support. As earlier noted, comments on each post on this blog need not be restricted to the subject of that post. Anything related to SCOTUSblog or its "sister blog" (or other "family" blogs; there's now yet another one, a little like those "Alien" movies) is fair game, and (to again borrow a good phrase) sufficiently compelling critiques will be elevated to main posts.
I plan to play this by ear. I don't plan to continue with this if there's little interest. To the degree there's enough interest among readers, judged by the hits and number of comments, I'll try to keep posting. The more readers comment, either here or on their own blogs, the more time I'll spend on it. If there's enough material to keep this blog going (I started it with only a couple posts firmly in mind), it would help to have people willing to work enough on this to turn it into a group blog. If others don't want to help keep it going, it will probably die out within a few weeks, as it should for lack of material and/or interest. I haven't invested much time in this, and don't plan to unless there's substantial interest.
Look for the first substantive post by Wednesday night. Meanwhile, any further comments are appreciated. Posts on this blog may be infrequent, at least at times, so if you want to make sure you don't miss something, rather than wasting time checking in, you might want to set up an RSS feed or arrange to have posts e-mailed to you using NewsGator or a similar service. Or just e-mail me (concowboy AT mailcan DOT com), and I'll do my best to alert you to future posts, or have someone else do it.
Or just ignore this blog if keeping up with it is too much hassle. As to that suggestion, I recommend the brilliantly sardonic "Statement of Audience" which the folks at SCOTUSblog do not seem to have read, and which can be found (with a link to the underlying source document) here, and which is discussed a bit here. Apparently some commentators on this blog think a more appropriate "Statement of Audience" for the SCOTUSbloggers would be this one. I'll try to stay out of that debate.
posted by Unknown at 1:42 AM
7 Comments:
So three days into the blog, you still haven't identified yourself, or even managed to make a substantive post. Impressive.
I agree with what I think you're saying between the lines, that anything in the vein of "Goldstein's an idiot" isn't worth getting into for its own sake. However, of possible relevance to critiquing the substance of Goldstein's posts, at least on the Supreme Court nominations blog, I think you should look into Goldstein's frequent unanimous losses in cases he argues in the U.S. Supreme Court. My sense is Goldstein's set some sort of record, at least a modern-day record, for losing cases unanimously, 9 to 0, that is, for not being able to convince even a single justice that there's any merit to his client's position. For example, just last Term (2003-04), Goldstein lost all three of the cases he argued, unanimously. That is, his combined vote total was 0 for 27! I've not tried to canvass the historical record, but has anyone else ever argued three or more cases in a single Term and managed to lose each case argued, unanimously? Perhaps someone else can look into and comment on that.
The point isn't to attack Goldstein for being a "loser," for its own sake. The point is how this may bear on the credibility of some of Goldstein's blog posts. This amazing, perhaps unique, track record of losing cases unanimously (which may account for some of the ridicule among Supreme Court clerks) might legitimatly be viewed as casting doubt on Goldstein's legal judgment, maybe even his candor as an analyst generally, which seems relevant to the credibilty of his posts.
For example, in recent blog posts Goldstein is setting forth his assessment of what he thinks is likely to happen regarding Supreme Court nominations, based on his considered judgment. Evidence that he's taken case after case in which he's argued to the justices that under the law his client clearly should win, but then has lost time and again, 9 to 0, suggests he has poor judgment and, other things being equal, therefore there's good reason not to pay much attention to his considered judgments. Also, since in his briefs in these losing cases Goldstein presumably argued on at least some grounds that his client was clearly entitled to win, it may be that in at least some of his 0-to-9 losing cases he argued basically frivolous positions akin to "black is white." If this is true, that would undermine one's confidence in Goldstein as a trustworthy, level-headed analyst of the subjects addressed by him.
What's particularly striking is that it sounds like Goldstein has taken on these total loser cases voluntarily, maybe even sought them out. It would be one thing if an attorney fought hard in a losing case in the lower courts, and loyally stuck with it in the Supreme Court, losing 9 to 0. No one would fault a lawyer for sticking with the client like that. However, Goldstein and his firm practice exclusively in the U.S. Supreme Court, so he's in a position to cherry-pick his cases and entirely avoid total loser cases. He's not constrained by having represented the client in the lower courts, and needing to stick with the case out of loyalty or efficiency. He can just decline to get involved in such total loser cases which tend to undermine one's credibility as a lawyer.
An attorney with good judgment would be able to spot and avoid cases that are so weak that not a single justice can be convinced of the merits of the party's argument, and would avoid such cases so as to develop a reputation for having good judgment, and so as to avoid a situation where he or she might have to argue that black is white, lose 9 to 0, and lose credibility, especially with Supreme Court clerks who find themselves chuckling about people who show up clueless about having a total loser case.
An attorney with plenty of professional opportunities and plenty of prospective paying clients would steer away from such total loser cases and focus on the cases with at least some merit, that is, where there's a reasonable prospect of convincing at least some justices of the merit of the party's arguments. That Goldstein has voluntarily taken on so many total loser cases tends to support the conclusion that he is not among the attorneys with good judgment and abundant professional opportunities.
So perhaps there is some truth to what the "Anonymous" commentator said, here, that Goldstein's "market niche has pretty much been one of identifying loser cases that no one wants, and doing them for free" -- although I think the name-calling about "pompous idiot," etc., goes too far, and also tends to detract from the substance of the discussion.
In conclusion (sorry about this overly verbose comment), the fact Goldstein's argued and lost all these cases 9 to 0 might make readers wonder why they should give much if any weight to his judgment now on Supreme Court nomination matters and on other subjects in which he sets forth his considered judgment.
Let me make clear that merely having a losing record is not, to my mind, any big deal. After all, half of cases are lost, which means on average half of attorneys have losing records, right? But probably very few attorneys voluntarily take on, and then lose unanimously, 9 to 0, case after case in the Supreme Court, including all three arguments in a single Term (suggesting we're talking about a systematic, not episodic, lack of good judgment). That seems notable, and probably relevant to what you're covering in your blog. And since the point is not that, in abstract, "Goldstein is an idiot," but that this apparent ardent pursuit of an unprecedented string of total loser cases is relevant to evaluating Goldstein's judgment and hence the credibility of his blog posts, I think you should be willing to blog about it.
In my comment on the first post of this blog (June 12 4:33 p.m.) , I raised and rejected the possibility that some unknown genius is behind this blog, and it'd have lots of important and interesting things to say which SCOTUSblog readers will be eager to read. "Somehow it strikes me as unlikely that unknown geniuses would bother with this sort of thing," I observed. The fact that as of now there have been no substantive posts at all tends to support my skepticism.
My skepticism now extends to the commentators. "Goldfinger," whose agenda seems obvious from his/her pseudonym, attacks Tom Goldstein based on this quite ironic theory: "An attorney with plenty of professional opportunities and plenty of prospective paying clients would steer away from such total loser cases" ( i.e., the handful of cases which Goldstein has lost 9 to 0, presumably because the cases were simply difficult, not due to any identifiable fault in his advocacy effort) "and focus on the cases with at least some merit . . . ."
Well, what about "Goldfinger" and other anti-Goldstein commentators on this blog? If they had "plenty of professional opportunities and plenty of prospective paying clients," isn't it reasonable to assume they'd be tending to those opportunities and clients rather than posting anonymous comments attacking someone who by all accounts is a respected member of the Supreme Court bar? Isn't it reasonable to assume the only people who would post such comments are those for whom the "opportunity costs" are roughly zero? It seems to me that the only "total losers" here are the anti-Goldstein commentators who by taking the time needed to post these elaborate comments are merely proving they are the ones lacking attractive opportunities and clients.
To "Goldfinger" and anyone else anonymously posting negative comments on this blog: Why are you unwilling to identify yourself so you're accountable for what you say? Shame on you for anonymously attacking legitimate bloggers who do identify themselves.
Well, a possible explanation for the anti-Goldstein comments (just a theory) is they're being made not by practicing lawyers who lack opportunities or clients, but by bright, perhaps overly energetic law clerks (maybe even U.S. Supreme Court law clerks), who are either caught up on their work in making their bosses look good or are procrastinating on the work, and who are mostly amusing themselves, albeit at Goldstein's expense (which I don't necessarily defend).
I think "anon" is totally missing that possibility (which is, I should emphasize, just a theory).
Incidentally, I agree Goldstein's string of unanimous losses has a lot to do with the ridicule level among current and former U.S. Supreme Court clerks.
Goldfinger certainly takes up a lot of room to make exactly one point: TG has lost some cases nine to zero. Of course, Goldfinger neglects to mention how often the Court decides its cases unanimously. In this term alone, 22 of the 58 cases so far decided after oral argument were either unanimous, 9-0 (with concurring opinions), or 8-0 (with Rehnquist not participating). This can readily be confirmed by consulting the incredibly useful summary of cases decided that SCOTUSblog published a few days ago.
According to Goldfinger, 22 lawyers this term should not wasted their time arguing these cases before the highest court in the country because these "total loser" cases were so meritless that they didn't even get one vote. This is despite the fact that at least four Justices voted for cert. in each of the cases, and that the cases represent nearly a third of all the cases granted this term.
"Anon" and "Jack Elsewhere" are trying to minimize Goldstein's string of 9-to-0 losses as occurring in only "some" cases, a relative "handful," so I took a closer look.
I haven't had a chance to look into the "Goldfinger" theory that in at least some of the total loser cases, Goldstein made arguments akin to "black is white," but below is a list of all the cases Goldstein has argued where he lost 9 to 0, which should provide a starting point for analysis of that theory.
This is based on an electronic search indicating that between April 1999 and now, Goldstein argued a total of 14 cases, 13 of which have been decided. Of the 13 decided cases, Goldstein has lost 5 unanimously -- almost 40% of his arguments -- in addition to his three other losses.
It's not just Goldstein losing all three of his arguments unanimously last Term that's amazing, but his overall record of unanimous losses. It's hard to imagine there's any other Supreme Court advocate -- past or present -- with so many unanimous losses in raw numbers combined with unanimous losses constituting such a high percentage of his or her appearances. I mean really, can you imagine there's someone out there who's lost 6 cases unanimously, and those losses comprise 50% of his or her appearances? Can you imagine there's anyone even close to Goldstein in this respect, say, that he or she has lost even 4 cases unanimously, and those losses comprise even 30% of his or her appearances?
Goldstein's famous for keeping all sorts of statistics about cases before the Supreme Court, so maybe someone should ask him if he's kept statistics on this. Maybe he can answer whether there's anyone even close to him as far as a long string of unanimous losses which takes up a huge percentage of his or her total appearances before the Court.
Goldstein's statistics are so improbably, freakily negative that his amazing number and percentage of unanimous losses arguably make him the anti-DiMaggio of Supreme Court litigation (Joe DiMaggio having achieved the incredibly improbable feat of hitting successfully in 56 straight games).
If anyone's familiar with any of the cases in which Goldstein unanimously lost, or has time to read the briefs, please comment on whether Goldstein argued anything that was basically frivolous, or if he was so unrealistic about the nature of the case as to be clueless. Otherwise I'll try to look at some of Goldstein's briefs if I get a chance. At the risk, I suppose, of being branded a "total loser" for bothering to do so.
I'm not willing to commit now, but depending whether the blog takes off, I might be willing to be part of a group blog, "Cowboy" permitting.
Here are the cases. For those who are interested, I've hyperlinked to the decisions, and have also added a link to where at least some of the briefs can be found, for those willing to look at the briefs to assess whether Goldstein argued anything that was basically frivolous.
1. Cunningham v. Hamilton County, 527 U.S. 198 (1999) (Goldstein represented petitioner; lost 9-0)
2. United States v. Bean, 537 U.S. 71 (2002) (Goldstein represented respondent; lost 9-0) (briefs).
3. Lamie v. U.S. Trustee, 540 U.S. 526 (2004) (Goldstein represented petitioner; lost 9-0) (briefs).
4. Central Laborers' Pension Fund v. Heinz, 541 U.S. 739 (2004) (Goldstein represented petitioner; lost 9-0) (briefs).
5. F. Hoffman-La Roche Ltd. v. Empagran S.A., 124 S. Ct. 2359 (2004) (Goldstein represented respondents; lost 9-0) (briefs).
At a quick glance, it looks like Goldstein wasn't involved with any of these cases in the lower courts, so he doesn't have the excuse that he just stuck with a total loser case out of loyalty to the client.
As I think someone's pointed out, because he specializes exclusively in U.S. Supreme Court litigation, if he had good judgment Goldstein could be among the advocates with the lowest level of 9-to-0 losses, by simply declining to take such hopeless cases which can only undermine his credibility as an advocate by being wiped out time after time after insisting his client is clearly right.
Instead, Goldstein's got the highest level of 9-to-0 losses, maybe the highest in history for someone with more than a few Supreme Court arguments. It doesn't speak very well for his judgment.
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