Shark for the defense, part 2

Prof. Rick Esenberg has released the latest in what is currently a four-part series entitled, "Setting the record straight." I suspect there may be some straightening of the record contained somewhere in these missives, but there's also a not inconsiderable amount of warping it.

To wit, the following, in response to my "Over the rainbow and out to lunch" of Feb. 2. "Although," as Esenberg puts it, "more for finding a point of departure than to offer rebuttal." But he can't resist attempting a few shark bites here and there, italicized below, so let's at least "set the record straight" on those.

"[I]n addition to all these longstanding case precedents [Butler] cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities." — Judge Michael Gableman

[W]hile I doubt that there was any nefarious intent, it is a bit of a malapropism here.

This is one of the reasons I enjoy Esenberg's blog: for the belly laughs. Indeed, this may well be one of the cleverest sentences he's ever constructed. You have to admire the choice of words, "nefarious" vs. "malapropism." On the one hand, the most extreme interpretation possible (very wicked, evil, immoral, sinful, vicious) and on the other, a mere jovial slip of the tongue, and only "a bit of" one, at that.

Esenberg has been following politics — and been a lawyer — long enough to get what Gableman was saying. But he deserves credit for the hilarious dichotomy he offers.

Then Esenberg casually dismisses "manufactured" as "a bit of populist flourish." As I'm fond of saying, I was born at night, but not last night. And I understand conservative-speak as well as anyone: manufactured at colleges and universities = fabricated from whole cloth by leftist academics. We know the code too. No wonder Esenberg wants to set these statements of Gableman's aside! Good for him on that account, at least.

IT emphasizes how complicated DuBose is and we hear that in judicial elections. You can't judge a decision, we are told, unless you read the briefs, heard the argument and know enough law to place it in context. So lay off.

And this is one of the reasons I sometimes don't enjoy Esenberg's blog, because that was hardly my conclusion at all. I said that complexity often doesn't lend itself to sound bites and in particular, ridiculous and fact-averse sound bites such as the example I gave. I never suggested that anybody ought to "lay off."

As a matter of fact, I'm grateful for some of the wild claims issuing from the Gableman campaign and its supporters; it's been entertaining making fun of them. I'm looking forward to their continuation, and there's little question in my mind that there will be many, many more to come.

By way of an analogy, it's sometimes said that people like me, who don't believe in God, actually need God more than people who do believe in God, because we like to talk about God so much, if only for entertainment and arguendo purposes, whereas people who do believe in God are less inclined to investigate the God-details. There's some truth to that!

In fact, suggesting that a critic has manufactured an issue because there is more to it than the limitations of campaign spots will allow, is, in its own way, also misleading.

Now I'm being misleading by describing how misleading it is for Gableman to suggest Butler relied on "The Wizard of Oz" to reach a disposition in an opinion he didn't even write? Esenberg is too clever by half, I must say. Except this particular manufacture was deployed during a 75-minute debate without any such limitations. Will it turn up in a campaign spot? We'll see, I guess. I hope so, for the reasons set forth above.

This is why it was fair for Daniel Suhr to say that Justice Butler "especially defended" use of the studies. He was responding to Justice Roggensack's criticism of their use.

Well, not exactly. More specifically, he was responding to the self-undermining logical disconnect apparent in Roggensack's dissent, in that on the one hand she was using the studies in support of an argument while simultaneously dismissing them as "disputed social science theory."

In other words, 'You can't have it both ways,' is pretty much all he was saying. If you're going to rely on a set of statistical findings, then you can't dismiss the same data as "disputed theory." Do they support your argument, or not. That's actually a criticism of the use Roggensack put to the studies, not a defense. Criticism and defense, they're sorta at the opposite ends of a continuum, kinda like "nefarious" and "malapropism."

But I suppose Suhr can say anything he wants, and has.

Finally, there is this comment under Esenberg's post, from the dependable fan of strawmannery and red herringing, Dad29:

"Complexity" and "nuance" are generally used to derogate arguments from Common Sense.

I am reminded of a pertinent quotation from Sydney Smith: "He not only overflowed with learning, but stood in the slop."

Which just goes to show that no matter how effectively is the lie put to the Gableman campaign's clumsy efforts at negative campaigning, they will nevertheless find a receptive audience of eager dupes.

If there's a better argument against the popular election of State Supreme Court justices than the mere existence of such willfully gullible electors, it eludes me at the moment.

[Please visit the iT Butler/Gableman archive.]