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Brian Leiter
University of Chicago Law School

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Thursday, August 31, 2006

Howard Bashman, Nonpartisan?

I really don't follow Mr. Bashman's blog that closely, but I was surprised to read this article in the New York Times which described his blog as "non-partisan."  While it is true that he largely links to news and related items about appellate litigations, I would have thought it obvious (from my occasional visits to his site) that he leans to the right, both in terms of what he often chooses to highlight and his occasional editorial remarks.  What do readers who follow his site more closely think?

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Well, I think you're right in one respect, Brian: It's fairly transparent that Howard's sympathies tend rightward -- he doesn't really pretend otherwise, any more than you and I hide our liberal perspectives -- and that, left to his own devices, he is more likely to highlight and praise conservative opinions and articles than those on the left. On the other hand, I've found that Howard is more than eager and willing to link to left-leaning posts and articles if they are brought to his attention -- I can't recall a single time he ever declined to link to a post I or others have suggested in a context that signaled his intention to skew debate rightward.

It's noteworthy, perhaps, that Liptak used the adjective "nonpartisan." In a technical sense, this is probably accurate: Howard does not typically engage in any *partisan* blogging, even though his jurisprudence is obviously closer to that of Bush judges than to that of Clinton appointees.

On the other hand, Liptak was obviously quoting Howard as a "nonpartisan" source in order to convey the notion that his account of the reactions to the NSA decision was not only nonpartisan, but *neutral,* and that therefore the NYTimes readers could be confident that all right-thinking experts, of whatever perspective, were disdainful of Judge Taylor's opinion:

"Discomfort with the quality of the decision *is almost universal*, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments. 'It does appear,' Mr. Bashman said, 'that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.'"

Now, in some weak sense, this was true: Jack Balkin and I, for instance, both expressed some disappointment with Judge Taylor's decision. But we also both also praised it in part; we both thought the criticism of her opinion was way overblown (and disingenuous, not to mention grossly inappropriate in large measure); and we both thought that the court's judgment -- that the NSA program is unlawful -- was far more important than whether the opinion was well-written. In other words, we thought the focus of the reaction to the decision ought to have been firmly on the President's lawbreaking, rather than on district court craftsmanship (which is, after all, rarely critiqued in the New York Times, even though we all know that trial court opinions often leave a lot to be desired in terms of rigorous analysis).

Moreover, there's simply no reason to think that "discomfort" with the opinion was "almost universal." (It's not a direct quote, so hard to tell if Howard actually said anything about a "universal" reaction.) To the contrary -- most folks I know were thrilled with it, whether or not they agreed with every jot and tittle of her analysis. See also Larry Tribe's open letter to Liptak that we posted on Balkinization for more in this vein.

Indeed, there's something very disconcerting about the basic thrust of Liptak's account, and the Times's odd obsession with Judge Taylor's craft, which was apparently designed to call into question the correctness of her (correct) conclusion that the President has acted unlawfully. *Whatever* one thinks of the particular merits of portions of Judge Taylor's opinion, it clearly was not even the most egregious judicial handiwork in a high-profile case this month. That honor certainly goes to Judge Ginsburg's opinion for the US Court of Appeals for the DC Circuit in Murphy v. IRS, declaring a federal tax unconstitutional. The Murphy decision is just about the worst -- most poorly reasoned, least judicious, reflecting the weakest understanding of basic constitutional law, etc. -- opinion in recent memory (Bush v. Gore possibly excepted). And it will have far greater impact -- all of it unnecessary and detrimental -- than Judge Taylor's opinion. Not to mention that, unlike Judge Taylor's decision, the Murphy *conclusion* was simply wrong. Looking for a decision that would (or should) be met with "universal discomfort"? This is Exhibit A. And yet, other than on the TaxProfBlog, where is the outrage? The articles and Op/Eds in the New York Times? Not to mention widespread blogospheric criticism and ridicule? (Time permitting, I hope to be able to blog further about Murphy next week.)

Posted by: Marty Lederman | Aug 31, 2006 8:58:59 AM

That's very useful, thanks, Marty. But one correction: I'm not a liberal! The world is bigger than the conservative-liberal spectrum would suggest--and much bigger than, as it now is in the US, the spectrum of crypto-fascist on one end to moderates with tepid liberal leanings on the other!

Posted by: Brian Leiter | Aug 31, 2006 9:07:42 AM

The article says that Bashman is "a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments." That seems right to me. The vast, vast majority of his posts have nothing suggesting anything partisan at all, though I agree that he seems to personally tilt to the right, and sometimes has commentary to that effect. I don't think the NYT piece suggests otherwise.

Posted by: Chris | Aug 31, 2006 11:55:06 AM

Bashman is fair, but not balanced, which by my lights is a perfectly fine way to go about things. (If you say "not balanced, but fair" it sounds nicer.)

Posted by: alkali | Aug 31, 2006 12:07:02 PM

I read Bashman's site a few times per day, and I'm also of the impression that he personally leans to the right. Even so, I think his blog is mostly full of links to news headlines and cases without expressing any sort of opinion about them. He clearly thinks highly of certain judges, but not because of their politics (e.g. he has remarked several times that Ed Carnes is a "good writer"--which he is, regardless of what you think of the content of his writing).

He rarely expresses any opinions on the blog (other than subtle hints that he thinks highly of his blog), and when he does, they're usually about non-politically charged stuff, like the rule about nonprecedential opinions (which he got really worked up about), or the question whether the Ninth Circuit should be split (arguably politically charged, but not really). The only really arguably partisan stuff he's done--in my view--is to link fairly often to the opinions of certain conservative judges and to endorse Judge Alito's nomination to the Supreme Court. But even the Alito endorsement was more of a name-dropping thing than anything substantive. Even the content he chooses to link to is at least somewhat balanced, politically.

Another point I'd make is that Adam Liptak's reporting about the work of the courts hasn't always struck me as being particularly careful with the details. Perhaps by "nonpartisan," he simply meant not actively, explicitly partisan (see, e.g., instapundit), which I think is right.

Posted by: DCClerk | Sep 1, 2006 4:01:47 AM

So what is our standard of non-partisanship? Could the general Leiter blogsite be described as "non-partisan"?

Posted by: Richard Nagareda | Sep 1, 2006 4:49:59 AM

I'd say this blog contains non-partisan gossip on faculty moves & school reputations, no? And highly partisan commentary on other stuff.

Hey, by the way, is there some way to allow italicized comments?

Posted by: Chris | Sep 1, 2006 9:03:35 AM

It's true that I'm a partisan of the truth and the evidence, but that qualification aside, I think Chris Green's description is apt. I do not fault Mr. Bashman, by the way, for being a partisan (not of truth!), I was just surprised by the description of his blog in the NY Times.

(I also don't know how one creates italics in a comment, I'm afraid.)

Posted by: Brian Leiter | Sep 2, 2006 4:53:15 PM

Italics test.

Posted by: jd watson | Sep 2, 2006 7:27:32 PM

Testing html tags in comment.

Does this show up as italic?.

(It will depend on the settings of the blog.)

Posted by: Kaimi | Sep 3, 2006 12:56:58 AM

Typically, to insert italics, you need two things.

First, the right html tag. This is a less-than symbol, then the letter i, and then a greater-than symbol, to open italics. It looks like this, except that it has greater-than and less-than symbols: [i]

You use that to open italics, and a [/i] to close them. So your comment would go:

text text text [i] italic text [/i] text text text.

Again, don't forget to substitute "greater-than" and "less-than" for [ and ] .

Second, the blog has to have enabled html tags in comments. That's something Brian has to do, if he wishes to allow html tags in comments. I don't know his blog settings, so I can't tell you whether they're enabled or not.

This paragraph is placed between appropriate html tags. If html codes in comments are enabled, it should appear italicized.

Posted by: Kaimi | Sep 3, 2006 1:03:39 AM

I don't think that HTML is enabled for comments.

Posted by: Chris | Sep 3, 2006 2:56:07 PM

I have been following How Appealing since shortly after it first came out. I think that Howard's blog (as opposed to Howard himself) is both fair and balanced. Howard's MO is not to try and find one news item on the left, another on the right, and so on. He works with what people send him; he's always made that clear. If most of the readers who send him stuff are "conservative" that is not exactly Howard's fault. He is a working lawyer and his life is not How Appealing.

I do agree with that Howard himself seems to lean toward the right. But I think that his blog is above all a service to the legal community. A service for which he should be proud.

To my mind the problem with the word nonpartisian is not that it is true or false, its that the word doesn't really apply to How Appealing. The world is not filled only with people with political agendas, as the NYT sometimes seems to think. A better word to describe How Appealing would be "apolitical".

Posted by: Daniel | Sep 4, 2006 8:39:12 PM

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