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Sarcasm Is Not an Argument:
In the comment thread about Judge Sarokin's post on the Padilla case, commenter "Carl Levin" (most definitely not this Carl Levin) tries to use sarcasm to express the view that the people who think Padilla has been treated poorly are ignoring how dangerous he is. I think Levin's comments illustrate a lesson: sarcasm may be fun for its author, but it tends to be a really poor means of persuading someone who does not already agree with you.

  The problem with sarcasm is that it pokes fun at the other side without actually making an argument. If you happen to agree with the speaker's view already, this can be pretty entertaining: you don't need an argument, so you enjoy the affirmation of how smart you are and how dumb the other guy is. But what if you don't already agree? Well, in that case sarcasm doesn't tell you very much except about the nastiness of the speaker. The sarcastic comment rather suspiciously avoids addressing the merits, and is more likely to turn off the undecided than persuade them.

  Let's take a look at Levin's argument, which I have cut and pasted from his comments (not in their entirety, but close). Recall that Judge Sarokin's post expressed concern with the way that Padilla has been treated. Levin responds:
Boy am I glad to see that someone is finally becoming the voice of reason and shouting it from the rooftops. This guy Padilla, you know, he was just misunderstood. His character was defamed because people have been saying that he wanted to detonate a radiological bomb in a big city, and really, nobody has anything solid on him. We should let him go, and give him a job at Los Alamos.

And what's really shameful about his trip to the dentist at taxpayer expense is that he had to wear shackles and goggles. When I go to the dentist at taxpayer expense, I wear loafers and occasionally carry a pair of bifocals, and even a guy who was planning to detonate a radiological device in a big city should be afforded the same kind of care. After all, he's in our custody and the least we can do is make him feel comfortable.

You know, really one of the nicest things in the world that people have ever discovered is how to take a few ounces of radiological waste and pack it on the outside of some conventional explosives and then plant it someplace in a big city, like right next to a fountain or a fire hydrant, or drop it from a small aircraft, detonate it, and force hundreds of thousands of people to evacuate while billions of dollars are spent to clean it up. Why, Padilla could have put one of those right outside the entrance to the NYSE or at the Mercantile Exchange in Chicago and it would have been an incredible gift to all of us. That's why Judge Sarokin is so correct about the abomination about him being "prejudged" as an "enemy combatant."

Yup, just like [critics of the Bush Administration] say. I agree completely. The charges are baseless and even the first charges couldn't be proved. Therefore we should let him go. I'll see you in my moon suit.
  I think it's safe to assume that Levin's view is that Judge Sarokin is not fully recognizing the the threat that Padilla poses; Levin makes that argument by taking on the voice of one who thinks Padilla is not only not a threat at all, but actually "an incredible gift." The hope, I gather, is that we will see how obviously silly it would be to think that, and we will then associate that silliness with the position that Judge Sarokin actually took.

  But imagine that you're undecided of what you think of the Padilla situation. On one hand, you figure Padilla is probably pretty dangerous; on the other hand, you might want some proof of that beyond the President's say-so. In that case, how persuasive is Levin's string of comments? Not very, I would think. The comments poke fun and make the other side look silly, but they don't actually address the debate. My guess is that for a typical undecided reader, sarcasm like that is probably more likely to push them to the other position rather than bring them aboard your own.
Team America (mail):
Sarcasm usually does exactly what you suggest. Of course, sometimes sarcasm mocks all popular positions (as Matt Stone and Trey Parker do often) and can actually reconcile positions. Well, at least I like to believe it can.
12.11.2006 12:22am
Truth Seeker:
Some people assume the individual is always right and the big evil goverment is always wrong. Others feel the government wouldn't waste its time on someone unless he was clearly guilty. When I was a college student I believed the former. As a adult I know neither is true, but odds are the government is not going to make a federal case with international implications unless it has something serious on the defendant. And if, in America, the defendant gets off, it does not mean he was innocent. It just means maybe the system sometimes doesn't work like in the OJ murders.
12.11.2006 12:29am
godfodder (mail):
Oren:
Oh, as if you know what you're talking about.

/sarcasm off
12.11.2006 12:32am
Cornellian (mail):
Yup, just like [critics of the Bush Administration] say. I agree completely. The charges are baseless and even the first charges couldn't be proved. Therefore we should let him go. I'll see you in my moon suit.

Completely missing the point. The issue isn't whether the charges are baseless or not, the issue is whether you accept the word of the executive branch that is holding him, or whether you require the executive branch to justify its detention of a US citizen seized on US soil before another branch of government, independent of the executive, i.e. the judiciary. I have no idea what Padilla did or didn't do or was or was not planning to do, but I find it astounding that so many people are willing to defend an executive branch prerogative to seize a US citizen on US soil and hold him in solitary confinement without trial or even charges, literally for years.
12.11.2006 12:34am
William Spieler (mail) (www):
It's not that it's sarcasm, it's that it's a strawman.
12.11.2006 12:39am
Parvenu:
I think sarcasm is actually a much more delicate art than Orin suggests; he is simply using a particularly heavy and hamfisted usage of it as his example.

When used purely as a tool of ridicule, sarcasm is likely to evoke exactly the reaction he supposes. However, I think it can be an incisive rhetorical weapon when used properly. I've seen it effectively used to poke at internally contradictory or hypocritical positions that an adversary is espousing with a straight face.

I read a pithy quote about this once and wish I could remember the source ... something along the lines of reason being able to stand the test of ridicule but absurdity or pretension not.
12.11.2006 12:39am
Cornellian (mail):
Some people assume the individual is always right and the big evil goverment is always wrong. Others feel the government wouldn't waste its time on someone unless he was clearly guilty.

The government spent plenty of time keeping Korematsu detained. Government consists of people. People as a rule don't like to admit they were wrong. The more serious the consequences of admitting one is wrong, the less likely one is to want to admit it. Mistakes get made, and people become invested in the original mistake, and spend their time trying to defend it or cover it up in some way. That's how the world works. Were they wrong on Padilla? Maybe, maybe not, I don't know, but on that issue I'm not going to just take the word of the people who have a vested interest in defending the original decision. There's a reason why habeas corpus is in the Constitution.
12.11.2006 12:40am
Lev:
What was Sarokin's argument in favor of his proposition?

Did he even have a proposition other than "what the Administration is doing is bad"?


The comments poke fun and make the other side look silly, but they don't actually address the debate.


Sarokins was debating something? Hey, I missed that too.

As an undecided reader, I see sarcasm puncturing self-important judicial pomposity...say, is Sarokin a judge? Is referring to him as Judge in these contexts "arguing from authority"?

[OK Comments: Lev, what is your argument? I don't think I understand your point.]
12.11.2006 12:42am
fooburger (mail) (www):
I think this is a reaction to a first-blog-post issue.

One of my problems with X's post is that it reads more like a rant than the kind of thoughtful, analytic post you would expect from a former judge.

That's definitely fine for a first blog-post, but generally people (at least, of the conservative bent I prefer) like to read posts which are more dettached and useful.

I prefer to format posts with: problem, discussion, solution-proposal. Maybe one or two of these elements are missing on occasion, but in general, a post with a lot of complaints but little or no deeper discussion or suggestion of a solution is a bit annoying.

In this particular case, the bloggers likely audience is at least familiar with the general facts behind the post, so the main selling point would be analysis and/or suggestion.

I'm guessing/hoping JudgeX will provide more in-depth postings in the future.

So was the sarcasm the problem? Not particularly. But the comment was pretty lame for not addressing the issues which one could probably extrapolate from the original post.
12.11.2006 1:02am
Constantin:
I agree with Orin, which is why I find Jon Stewart and Stephen Colbert to be vastly overrated as serious cultural commentators (precisely because passive-aggressive snark, to me, is not serious cultural commentary).
12.11.2006 1:17am
Huh:
It's not like the arguments are unknown at this point, so I'm not sure I see why Judge Sarokin has to rehash prior posts on the subject, or invent a new angle.

His point is precisely about passion and his surprise at the general willingness of Americans to accept the detention of an American citizen on a virtually permanent basis without a trial or access to a lawyer.

I'm sure there are plenty of people (e.g., Carl) who think the Bush administration is on firm legal and moral ground. What I think Sarokin is getting at is this: a lot of people disagree with the Government, but they're not really as engaged or enraged as they should be. I think Sarokin is preaching to the choir, which explains his lack of analysis. He just wants the choir to sing a bit more loudly.
12.11.2006 1:22am
OrinKerr:
Constantin,

I think of Stewart and Colbert as using parody and satire, not sarcasm. Seems pretty different to me, as typically there is an argument in the former but not the latter.
12.11.2006 1:41am
Dave N (mail):
The point of this post is effective sarcasm--not Judge Sarokin's commentary on the Padilla case--though based on the comments I suspect many wish to discuss that topic instead.

The most famous sarcasm in literature is probably Marc Antony's funeral oration directed at the conspirators in Act III, Scene two of Shakespeare's Julius Caesar:

Friends, Romans, countrymen, lend me your ears;
I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Caesar. The noble Brutus
Hath told you Caesar was ambitious:
If it were so, it was a grievous fault,
And grievously hath Caesar answer'd it.
Here, under leave of Brutus and the rest--
For Brutus is an honourable man;
So are they all, all honourable men--
Come I to speak in Caesar's funeral.
He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honourable man.
He hath brought many captives home to Rome
Whose ransoms did the general coffers fill:
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept:
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man.
You all did see that on the Lupercal
I thrice presented him a kingly crown,
Which he did thrice refuse: was this ambition?
Yet Brutus says he was ambitious;
And, sure, he is an honourable man.
I speak not to disprove what Brutus spoke,
But here I am to speak what I do know.
You all did love him once, not without cause:
What cause withholds you then, to mourn for him?
O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with Caesar,
And I must pause till it come back to me.

So sometimes, sarcasm works--as it did in this case.
12.11.2006 2:23am
Dave N (mail):
Antony's sarcasm becomes even thicker in the rest of his funeral oration:

But yesterday the word of Caesar might
Have stood against the world; now lies he there.
And none so poor to do him reverence.
O masters, if I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do Brutus wrong, and Cassius wrong,
Who, you all know, are honourable men:
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honourable men.
But here's a parchment with the seal of Caesar;
I found it in his closet, 'tis his will:
Let but the commons hear this testament--
Which, pardon me, I do not mean to read--
And they would go and kiss dead Caesar's wounds
And dip their napkins in his sacred blood,
Yea, beg a hair of him for memory,
And, dying, mention it within their wills,
Bequeathing it as a rich legacy
Unto their issue.

Fourth Citizen
We'll hear the will: read it, Mark Antony.

All
The will, the will! we will hear Caesar's will.

ANTONY
Have patience, gentle friends, I must not read it;
It is not meet you know how Caesar loved you.
You are not wood, you are not stones, but men;
And, being men, bearing the will of Caesar,
It will inflame you, it will make you mad:
'Tis good you know not that you are his heirs;
For, if you should, O, what would come of it!

Fourth Citizen
Read the will; we'll hear it, Antony;
You shall read us the will, Caesar's will.

ANTONY
Will you be patient? will you stay awhile?
I have o'ershot myself to tell you of it:
I fear I wrong the honourable men
Whose daggers have stabb'd Caesar; I do fear it.

Fourth Citizen
They were traitors: honourable men!

All
The will! the testament!

Second Citizen
They were villains, murderers: the will! read the will.

ANTONY
You will compel me, then, to read the will?
Then make a ring about the corpse of Caesar,
And let me show you him that made the will.
Shall I descend? and will you give me leave?

I agree sarcasm can be overused--but as Shakespeare demonstrated, it can also be quite effective.
12.11.2006 2:31am
Thief (mail) (www):
Sarcasm in rhetoric performs the same function that a reductio ad absurdum performs in logic. It is an acid, a way of stripping away the varnish of cant, bad argumentation, and flawed logic, leaving behind the essential question under debate, exposed for all to see. Like many toxic things, sarcasm must be handled very carefully, but when properly used and appropriately concentrated, sarcasm has a way of forcing us to examine the basics, and sometimes, can leave us saying "Wow. You know what? When you look at it like that, it really does sound stupid."
12.11.2006 2:44am
marghlar:
Sarcasm is a debate tactic, not a part of dialogue. It is meant to turn an audience against an opponent by making him look foolish. Maybe it even does what Thief suggests, showing the absurdity in an argument (although the same can be accomplished without sarcasm). But what it definitely does is alienate people who don't agree with you, especially the person who is the target of the sarcasm.

So if you actually want to convince other people that you are right, rather than just alienate them and others who agree with them, you'd be well advised to use sarcasm very sparingly, if at all. If you are right, and they wrong, it is mean to belittle them for not having the better position; if you are wrong (and always remember that you may be!), you make yourself doubly an ass by advocating foolish things with such vitriol.
12.11.2006 2:57am
logicnazi (mail) (www):
So I agree that sarcasm is frequently nothing more than a rhetorical trick to make your opponent look stupid but I don't think it is always an unconvincing part of an argument, or even a distraction from the real points.

First of all sarcasm can be quite relevant when the other side has based their case on 'common sense', 'obvious facts' or other unjustified knee-jerk reactions. Sarcasm/Satire is useful in these situations as it makes the uncriticized assumption underlying the argument look silly forcing many people to rethink their commitment to it they wouldn't have done otherwise.

I think a good example here is the recent Californian proposition mandating that sex offenders be subject to lifetime GPS monitoring, can't live within a quite large distance from a school etc.. Now the problem with this sort of issue is that you can point out all you want that most sex offenders aren't strangers, this might discourage family members from turning the offenders in, it would unfairly force the offenders to locate exclusively in rural areas, remove the ties that prevent many people from reoffending, and so forth but it tends to have no effect. People just have this non-intellectual knee-jerk response that 'off course we ought to punish sex offenders more and do everything we can to know where these dangerous predators are.' The strong instinct to keep track of people/things that our threats to our children combined with the deeply ingrained stereotype of the sexual predator as someone who lures *strange* kids into his power is just too strong for the argument to penetrate.

However, add just a bit of sarcasm, "Great Idea. Let's create roving bands of homeless pedophiles without anything to lose. I'm sure that will make our kids safe," and you force them to actually consider both sides of the issues and really engage the intellectual arguments.

I mean I think this is what was going on in a modest proposal as well. There were certain default/assumed social attitudes which people just wouldn't question about what was a moral way to treat the poor/unfortunate. By sarcastically representing them in a way that seems as obviously wrong as the way the other position seemed obviously right you smash through the barrier people have to considering the other position.

Another type of situation where sarcasm can be useful is when the discussion is being burdened by an unfair seriousness/sobriety. For instance suppose you believe that the harm to people's liberty/enjoyment from banning assault rifles (infrequently useful for self-defense) outweighs the loss of life caused by assault rifles. When the other side makes a great deal of very somberly and seriously talking about all the children who have died and giving emotional testimony how this one time a gun law would have saved little johnny people won't really give your statistical arguments/liberty concerns serious weight. However, if you remove the moral/common sense authority the other side has using sarcasm (so why don't we just ban kitchen knives too) you once again force people to give your side a chance.
12.11.2006 4:04am
Kovarsky (mail):
sarcasm can be effective comically. it's just that most people are comically bad at using it that way. for instance, in your example, the commenter just isn't funny. there's nothing clever about it. i actually appreciate the levity that good humor can bring to a thread, it's just that those most prone to sarcasm are least effective at it.
12.11.2006 5:47am
abcdefg (mail):
I think this sort of nastiness is routine because it's not about persuading the other side. It's about demonizing the other side so that your side gets worked up to a fever pitch. To some extent this seems to have worked for the Left. They may not have made many converts in the last few years with their extremism, but they have created a sense of identity within their ranks that makes persuading them of the contrary difficult. It also sustains them against contradiction and in the fact of tactical and strategic defeats.

Most of the time, persuasion doesn't work very well. But rabble rousing substitutes intensity for numbers. It works especially well when the guardians of public rhetoric -- i.e. the MSM -- instinctively side with you.
12.11.2006 6:50am
abcdefg (mail):
That should read: "in the face of tactical..."
12.11.2006 6:52am
Pete Freans (mail):
However, I think it can be an incisive rhetorical weapon when used properly.

I agree, Parvenu. Sarcasm has a place in argument if it's tempered with solid logic and used sparingly. I would argue that even in our profession, a well delivered sarcastic remark can be a powerful coup de grĂ¢ce, so to speak, against a weak counter-argument. I think it's fair to say that Justice Scalia for example has written numerous opinions where his sarcasm seems to figuratively drip off the page. I guess timing is everything and knowing your audience is important as well.
12.11.2006 7:32am
alkali (mail) (www):
The particular problem with this argument is that it doesn't rely on sarcasm so much as it relies on the schoolyard taunt, "You're less willing to resort to physical force than I am," sometimes expressed in a single word as the misogynistic epithet "P*ssy."

For reasons probably having to do with evolution, it feels good (for males, at least) to make that taunt and it feels bad to be the target of it. That doesn't mean it has any actual argumentative force, however.
12.11.2006 7:39am
anonymous coward:
"I think this sort of nastiness is routine because it's not about persuading the other side."

Exactly. But even if it were, I'm not sure it's less likely to persuade than calm, reasoned argument. I have seen few examples of people changing their minds on an politically-charged "soft" question (like Padilla's dangerousness) in response to argument.
12.11.2006 8:20am
DougJ:
Excuse me, but how exactly do you expect someone to respond to comments such as Judge Sarokin's? In effect, Sarokin is saying that it is more important to treat terrorists well than it is to keep Americans safe. That is worthy of sarcasm at best.

It's quite dismaying the way that those on the left have championed Padilla. Let's not forget that this is someone who wanted to set off a nuclear bomb in a major city. Due process and prisoners' rights don't mean so much when you're looking at the remnants of city, and at millions of dead Americans.
12.11.2006 8:22am
DougJ:

I agree with Orin, which is why I find Jon Stewart and Stephen Colbert to be vastly overrated as serious cultural commentators (precisely because passive-aggressive snark, to me, is not serious cultural commentary).



I agree heartily. It says something very sad that they have attained such status. Part of it, to be sure, is that the MSM digs up an infinite supply of anti-Bush canon fodder for their grist mill, as it were. Part of it is the intellectual inadequacy of the coming generation.
12.11.2006 8:34am
sbw (mail) (www):
Stepping back from the instance to look at the generality, where is it that students learn to recognize logical fallacies like sarcasm/reducto ad absurdum that used to be taught as part of the Trivium of the Seven Liberal Arts? Nowhere, except by chance.

As Dorothy Sayers said in a talk at Oxford in 1947:
For we let our young men and women go out unarmed, in a day when armor was never so necessary. By teaching them all to read, we have left them at the mercy of the printed word. By the invention of the film and the radio, we have made certain that no aversion to reading shall secure them from the incessant battery of words, words, words. They do not know what the words mean; they do not know how to ward them off or blunt their edge or fling them back; they are prey to words in their emotions instead of being the masters of them in their intellects.
12.11.2006 8:41am
Anderson (mail) (www):
In effect, Sarokin is saying that it is more important to treat terrorists well than it is to keep Americans safe.

That is nonsense. You have to put "in effect" in front of that sentence, because it's so utterly false.

The consensus on these two threads appears to be that, like it or not, the judge's post was defective due to a lack of argument. Pooh.

If we trouble to read the post, we see that it begins like this: "This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla ...." IOW, his own outrage is impelling him to start a blog.

Sarokan then goes on to give all the reason why an American *ought* to be outraged:

an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant".

Why, exactly, should anyone have to have it *explained* to him what's wrong with that? As I believe Justice Scalia put it, the feds have 2 choices with someone they accuse of Padilla's crimes: charge him with treason, or let him go. They did neither.

Habeas corpus is not about "protecting terrorists." It is, as the judge explains in his last paragraph, a fundamental right because it's essential for distinguishing likely wrongdoers from those held by mistake or for arbitrary reasons. It's one of those cherished, hard-won rights that any "conservative" worthy of the name would die in the last ditch to defend.

Outrage may not be terribly persuasive (cf. excellent comments on sarcasm above), but it shouldn't be underestimated. We don't expect people to provide reasoned arguments why molesting children or defiling altars are the wrong thing to do; we're outraged by anyone who does those things, or defends them.

What the judge's post suggests, rightly I think, is that in the realm of constitutional law, habeas occupies something like the same position. It would be on any short list of fundamental human rights. "We hold this truth to be self-evident," you might say.
12.11.2006 8:55am
Hoosier:
A little tweak of sarcasm can be an effective rhetorical device. Wm Buckley has always had it as an arrow in his quiver. But he's used it almost invariably as a laugh-line, preceding a substantive comment on the issue at hand. ("You surely are not propsing that we [insert absurd implication of his opponent's last statement here]. In point of fact, if we were to do so . . . "

But Messrs. Stewart and Colbert don't have another shtick: Stewart looks down on Bush with disdain. Colbert pretends to be a supporter, and gets laughs by seeming clueless.

Why is that worth an hours a day, five days a week?

Orin's right-on with this one. But the prevalence of sarcasm indicates that we are now preaching only to the choir. There's no effort being made to persuade.
12.11.2006 9:57am
RainerK:
Orin's post triggered some reflection. I have to admit, I tend to use sarcasm. Why do I do it? Mostly as relief from one of those discussion-stopper arguments that, in my humble opinion, are so obviously useless and stupid. It leaves me exasperated. Can't argue with a fool, yet the fool may have great power.
As an example the classic "If it saves only one (child's) life, it will be worth it." Sarcasm helps as does a long groan.
12.11.2006 10:01am
A DC resident (mail):
What about Swift's A Modest Proposal? That was quite effective.
12.11.2006 10:02am
MartyB:
For the best current illustration of concentrated distilled sarcasm, displayed for our amazement and edification, I suggest Ann Coulter. You can find excellent examples of what you're talking about any old day by browsing her columns.

You say of sarcasm: "If you happen to agree with the speaker's view already, this can be pretty entertaining: you don't need an argument, so you enjoy the affirmation of how smart you are and how dumb the other guy is. But what if you don't already agree? Well, in that case sarcasm doesn't tell you very much except about the nastiness of the speaker."

You are describing the essence of Coulter's writing. If the reader agrees with her, he is gratified by the sharp edged way she makes her points with sarcasm. If he disagrees, all her rhetoric makes no sense to him, and seems to be mere nastiness.

However, she also often salts her columns with factual statements, tho the facts are usually couched in sarcastic form. It is these facts, IMO, that create the extraordinary power of her writing. The reader who disagrees with her point will hate- absolutely, furiously hate- the sarcasm. But in crafting a response (even if only in his own mind), he can't just condemn the sarcasm, he must inevitably also deal with the fact. The sarcasm is the bait; the fact is the hook buried within.

Her best columns are heavily sown with facts. The current one appears to be almost totally sarcastic blather but does contain one important factual statement.

She starts with:

"The "bipartisan" Iraq panel has recommended that Iran and Syria can help stabilize Iraq. You know, the way Germany and Russia helped stabilize Poland in '39.
Now that Democrats have won the House, they can concentrate on losing the war. ...."

... and continues with a page of unrelenting 9th grade snippiness about Democrats, MSM, waterboarding, and the appropriateness of interrogation techniques for Khalid Mohammed, but then she drops in one factual assertion:

"Khalid Sheikh Mohammed was the principal architect of the 9/11 attacks and is believed to have played a role in the 1993 World Trade Center bombing, the Bali nightclub bombings, the filmed beheading of Wall Street Journal reporter Daniel Pearl, a thwarted 2002 attack on a bank tower in Los Angeles, and Operation Bojinka, a plot to blow up 11 commercial airliners simultaneously."

Any effectiveness this column might have comes from that sentence. IMO. I don't think this is one of her best columns, but her writing in general would be a rich source of material for a class in logic or persuavive writing.
12.11.2006 10:10am
John McG (mail) (www):
I think the impact of sarcasm is not so much to persuade those inclined to agree with the target, but to intimidate them from voicing their agreement.

In effect, the sarcastic arguer is imposing a social cost (his ridicule) on a certain position.

Now, if one firmly believes something, one should be willing to pay that cost, and ridicule from those who disagree shouldn't matter that much, but it does seem to have the "chilling effect."
12.11.2006 10:13am
Perry (mail):
12.11.2006 10:21am
tongue in cheeks:
I was going to write how sarcasm is an effective way to employ reductio ad absurda arguments, but "Thief" above, stole my thunder!

Prof. Kerr, your understanding of the utility of sarcasm as a rhetorical device needs improvement.
12.11.2006 10:22am
frankcross (mail):
I agree that sarcasm can be effective, though reductio ad absurdum is not a good example of this. Indeed, the problem is that it is badly done, typically addressing a straw man, as in this case. As a devise, reductio ad absurdum is not a very strong one and often simply a straw man argument.

Sarcasm done well is a rhetorical tool for exposing an internal inconsistency in an opponent's argument, often with an illustration of hypocrisy
12.11.2006 10:30am
Ubertrout (mail) (www):
Orin, I agree with Constantin (and disagree with you) re: Stewart (I don't like the Colbert report and don't watch it, so can't comment, although it clearly parodies a stereotype). While for most of its history the Daily Show was indeed parodic, lately it's been mostly sarcasm. For instance, compare the wonderfully parodic "Gov. Bush debates Pres. Bush" with a show nowadays, which basically consists of Stewart's histrionic Bush impersonation, several sarcastic comments about how stupid the administration is, a mocking correspondant piece, and an interview. I think your original post is a rather nice description of why I no longer find the show interesting, let alone persuasive.
12.11.2006 10:45am
Pete Freans (mail):
I would like to add that an effective use of sarcasm can be found in the writings and oratory of Christopher Hitchens. It's possible that his English accent contributes to this persona but anyone on the receiving end of his wit quickly realizes his impressive command of facts and logic.
12.11.2006 10:48am
Hoosier:
MartyB--

Is it OK if I just take your word on the Coulter columns? Or do I actually have to read them?

I have stopped reading Maureen Dowd for the same reason. I can't take the conceit that everyone is stupid and pubescent, except for Maureen Dowd.
12.11.2006 10:50am
Anderson (mail) (www):
I think Prof. Kerr's point is being overlooked, though maybe he stated it too broadly. The problem with Carl Levin's sarcasm was that it missed the point; it implied a ridiculous position to Judge Sarokin, rather than addressing the issue.

It's as if I were arguing the merits of Social Security reform with a Republican, and said, "oh, well, Republicans are brilliant and Democrats are all idiots, so you must be right." That's sarcasm, but it's not very good sarcasm, because the message is simply the opposite, that Republicans are idiots. Which isn't terribly persuasive.

Sarcasm should be a rapier, not a bludgeon.
12.11.2006 11:05am
crane (mail):
A friend of mine once bought a Coulter book by mistake. He's not American, so he's not that familiar with US popular culture, but he saw this book called "How to Talk to a Liberal" and thought she was some nice lady trying to bridge the vicious political divide.

He was, to put it mildly, not persuaded by the content.
12.11.2006 11:09am
sbw (mail) (www):
I wonder if sarcasm can't be used to restart a discussion.

When my children present a seemingly (to them) logical and rational position that is anything but, it cannot be responded to with logic and rational counterarguments. The best thing to do is cleanse the slate and start over.

I burst into a horselaugh. Full and from the belly. Then restart the discussion as if the absurdity recently expressed had never occurred. It's like hitting the reset button. It expresses "You can't be real" with warm tenderness.
12.11.2006 11:19am
Dave N (mail):
In my legal writings, I often use sarcasm as "footnote material," and usually reserved to respond when the argument is particularly stupid and/or opposing counsel has been particularly condescending. For example, recently another attorney wrote a condescending pleading and referenced "the Supreme Court's unaninimous decision" as part of his argument.

My footnote: The vote was actually 5-4 (Rehnquist, Scalia, O'Connor, Kennedy, and Thomas in the majority; Stevens, Souter, Ginsberg, and Breyer in dissent). While a 5-4 decision authoritatively expresses the view of the Supreme Court on an issue, such a result can hardly be called "unaninimous."
12.11.2006 11:19am
lucia (mail) (www):
Sarcasm usually only works when coupled with serious irony, parody, or both. Even then, it's an ambiguous tool. It never convinces those who you are mocking but may sway those in the middle to see the problems. Something like Swift's "A Modest Proposal", which used irony, and could be read sarcastically, begs those in the middle to provide the counter arguments. When they do so, they find themselves adopting counter arguments Swift wished to make.

Of course, Swift achieved this goal by selecting words to minimize the sarcastic tone which made it appear the writer actually believed what he wrote.

I don't think Levin managed to do that. (And if Levin has masked his sarcastic tone so as to convince people he meant what he wrote, likely people would respond with questions like: "How does saying the accused shouldn't wear blinders translate into we should let him carry bi-focals. Besides, if he owns bifocals and needs them, why shouldn't we deprive hin of his bifocals when he visits the dentist? Are we afraid he'll use them to assault the dental hygenist? These were probably not the questions Levin wished provoke.)
12.11.2006 11:22am
Sparky:
Or, as Marge Simpson put it last night, "Lisa, you're not going to get a husband using sarcasm."
12.11.2006 11:22am
AntonK (mail):
Judge Sorokin uses a device considerably more offensive than sarcasm, he uses the old "..they are husbands, wives, brothers..." etc... heart-strings tug to describe those taken on the battlefields of Iraq, Afghanistan and, yes, Padilla.

Well, how about the husbands, wives, daughters, and sons of the 3,000 protected persons killed at the WTC? Or how the thousands of others killed around the world from here to Bali and back over the past years?

Judge Sorokin and his ilk are a perfect example of why our courts are simply not up to the challenge of the GWOT. They may be effective at settling marital dissolutions and small claims lawsuits. But as Moussaoui and that terror-enabling NY lawyer's cases prove, their woefully unable to deal with Islamofascism.
12.11.2006 11:54am
Anderson (mail) (www):
AntonK effectively and persuasively argues that civil rights should not apply to bad people, only to good people.

Now, if only we had some sort of legal process for distinguishing the one from the other ... any suggestions? Or should we just leave it up to the President? It's not like he's been wrong before.
12.11.2006 12:00pm
AntonK (mail):
And Anderson persuasively argues that "civil rights" has anything to do with the workings of our courtrooms (at least most of the time).

What was it...6 of Moussaoui's jurors took into account his "difficult childhood" when deciding on his sentence? How is justice (or civil rights) served by baloney like that? Is that what we should tell the victim's relatives when Moussaoui or someone like him sets off a nuke in Seattle? "He had a troubled childhood......"
12.11.2006 12:24pm
Anderson (mail) (www):
How is justice (or civil rights) served by baloney like that?

Welcome to the vicissitudes of trial by jury. You have a better system? Send it to your Congresscritter.

And please recall that very little evidence tied Moussaoui to the 9/11 attacks; the perpetrators thought, not unreasonably, that he was too much a nutjob. Permit me to doubt that, had Moussaoui nuked Seattle, the jury would've spent much time on his troubled childhood.

(If he took out my ex-girlfriend in nuking Seattle, *I* might think that was a mitigating circumstance, but voir dire would probably keep me off the jury.)
12.11.2006 12:26pm
Tillman Fan (mail):
I notice that Carl Levin has been conspicuously absent from the comments after (a) earlier commenters had requested specific answers to reasonable questions, and (b) Professor Kerr gave his comments notoriety on the main page of the blog. I'm looking forward to his reappearance for an explanation of his "arguments."
12.11.2006 12:44pm
Q the Enchanter (mail) (www):
In some cases sarcasm might even be a moral imperative. It might not persuade, but it could well chasten.
12.11.2006 12:57pm
DougJ:

Judge Sorokin and his ilk are a perfect example of why our courts are simply not up to the challenge of the GWOT. They may be effective at settling marital dissolutions and small claims lawsuits. But as Moussaoui and that terror-enabling NY lawyer's cases prove, their woefully unable to deal with Islamofascism.



Well said. We are facing an ememy more dangerous and certainkly more insidious than any that we have faced before. To think that the old rules apply is the worst sort of naivete. In the real world -- as opposed to that happy utopia that exists only in the heads of leftists -- there are compromises. Is there a sacrifice of rights in a case like this? Sure. Is it infinitely preferable to the sacrifice of thousands of American lives? Obviously. Why so many can't see this is beyond me. Some of you need to try watching "24" sometime.
12.11.2006 1:14pm
Mark Field (mail):

Some of you need to try watching "24" sometime.


In a discussion about sarcasm, I have to assume this is a put on. If so, it's the most effective sarcasm-like comment in the thread.

For all the discussion about the "danger" of Padilla, including nuclear destruction of cities, it might help to remember that he hasn't been charged with that.
12.11.2006 1:36pm
Anderson (mail) (www):
I have to assume this is a put on

DougJ is famous for his peerless impersonations. Which didn't stop me from missing that he was the "In effect" commenter whom I went off on. Curse you, DougJ!
12.11.2006 1:51pm
JunkYardLawDog (mail):
Padilla doesn't need to be charged with anything. Correct me if I'm wrong, but wasn't Padilla picked up immediately after entering the United States after being in an enemy battlefield location.

It is a bit disingenuous to argue as some do here that he is a USA citizen picked up on USA soil as though that was the start of his traitorous enemy activity. He was re-entering the USA from a battlefield location of a foreign enemy. I don't see the difference between that and picking him up on the actual foreign battlefield. Its just a matter timing and nothing more substantive than that.

If the executive need not explain anything to the judiciary about picking up a citizen on a foreign battlefield, then he has nothing to explain about picking up a citizen returning from a foreign battlefield at the airport upon landing inside the country.

Maybe this case is easy for me because I think the President has authority to pickup citizen spies/traitors inside this country, who never left this country, and detain them for the duration of hostilities at a time of war.

We are at war people.

Says the "Dog"
12.11.2006 1:56pm
Ak Mike (mail):
Sarcasm can be a suberb form of argument if it is both understated and accurate. Judge Sorokin's post was certainly amenable to that kind of response, since the judge failed to come to grips with the basis for the other side's actions. However, Carl Levin's sarcastic response was overstated, and not accurate. Most important, the sarcastic comment fails because it does not combat the weakness of Judge Sorokin's post. The weakness is not that Judge Sorokin favors due process of law for Padilla, but rather that the judge ignores the arguments against extending that protection.

Judge Sorokin's cri de coeur overlooks the strength of his opponent's case, which is this: Our American criminal process, which requires a very high standard of proof from the government, assumes that it is more harmful to punish the innocent than to acquit the quilty.

But any form of incapacitation is also punitive. Suppose the government has excellent reason to believe that an individual will cause very grave, very widespread harm, but it will be difficult to establish that, without compromising secret agents, as proof beyond a reasonable doubt in a criminal trial (with the need to confront witnesses, avoid hearsay, avoid tainted evidence, etc.).

Let us presume that is the case with Padilla: the government has a very good reason to think that if it releases him, he will kill hundreds or thousands, but it will be tough to convict him and thereby incapacitate him through incarceration. (The Dirty Harry situation.)

Judge Sorokin fails to address this, and so his blog post is not a serious argument about the issue he raises. He should therefore reasonably be subject to ridicule. But from Prof. Kerr's post, it is evident that Carl Levin has failed in his sarcasm, because the sarcastic comment is the same thing that Judge Sorokin is doing (ignoring the opposing argument), but in reverse, and with more rudeness.
12.11.2006 2:13pm
Anderson (mail) (www):
the government has a very good reason to think that if it releases him, he will kill hundreds or thousands, but it will be tough to convict him and thereby incapacitate him through incarceration.

Sorry, I just don't buy that. There are plenty of ways to protect evidence in a criminal trial. The feds should have to at least make some kind of showing to the court.

Otherwise, we're left with unchecked power to detain citizens indefinitely, which no one should be willing to trust any executive with. America was founded on hardheaded, realistic skepticism about human nature and power. Where did that go?
12.11.2006 2:48pm
Mark Field (mail):

Correct me if I'm wrong, but wasn't Padilla picked up immediately after entering the United States after being in an enemy battlefield location.


Padilla was returning from a trip which took him to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq. At that time (May 2002), only Afghanistan could plausibly be described as "an enemy battlefield location".

In any case, that travel list is utterly irrelevant to the "dirty bomb" accusation which was being discussed in this thread as if the government were actually charging him on that basis. It isn't.
12.11.2006 3:25pm
logicnazi (mail) (www):
sbw,

Where can they learn proper understanding of logical reasoning and valid/invalid arguments. Certainly not in liberal arts, well at least not in the trivium, stretching the notion of arithmetic maybe in the quadrium.

First of all the liberal arts teaching of good argumentation tends to focus too much on classification of arguments into bins (ad hominem, ergo propter hoc...). These make you sound pretty smart but they are just a small fraction of the bad ways to argue.

In order to learn proper reasoning you need to start with a very well defined and formal setting. If you can't clearly distinguish who is right and who is wrong it is very hard to learn what is and isn't a valid argument. You need to start by reasoning by learning mathematics and how you can prove things where the obvious and unarguable standard makes it possible to correct common bad intuitions that would slide in a less clear cut discipline. Only once you can write up a formal proof about the integers does it make sense to try and transfer this knowledge to rhetoric with all the confusing emotional and rhetorical tactics to distract you.

This is why we should stop requiring calculus for our students at large (obviously not our engineering students) and instead make them take a proof based course in some basic area of mathematics (calculus is too complex to be good introductory material to proofs).
12.11.2006 3:48pm
DougJ:

You need to start by reasoning by learning mathematics and how you can prove things where the obvious and unarguable standard makes it possible to correct common bad intuitions that would slide in a less clear cut discipline.



Forgive my skepticism please: this is a good idea in principle but given that mathematicians are notoriously liberal, I don't trust them not to inculcate the kids with left-wing ideas. I realize that no matter who teaches them at college, this is likely to happen, but those in the hard sciences have a particulalry bad repuation.
12.11.2006 4:24pm
DougJ:

You need to start by reasoning by learning mathematics and how you can prove things where the obvious and unarguable standard makes it possible to correct common bad intuitions that would slide in a less clear cut discipline.



Forgive my skepticism please: this is a good idea in principle but given that mathematicians are notoriously liberal, I don't trust them not to inculcate the kids with left-wing ideas. I realize that no matter who teaches them at college, this is likely to happen, but those in the hard sciences have a particulalry bad repuation.
12.11.2006 4:26pm
Ak Mike (mail):
Anderson - unlike Judge Sarokin, in your comment above you actually engage with the argument of your opponent. Your remarks are therefore much less open to a legitimate sarcastic attack then are those of the good Judge.
12.11.2006 4:36pm
RainerK:
DougJ,

Forgive my ignorance please, but I don't get your argument. Liberal bias in math? I thought it would at least be possible to leave some things out of the political polarisation game.
Unless you refer to the fact that many people think one is discussing politics or religion with them when the problem is purely technical/mathematical. They get offended instead of trying to find the correct answer. If airplanes were made using ideology, you'd never find me inside of one.
12.11.2006 4:44pm
DougJ:

Liberal bias in math?



Not in their research, but in their own personal politics. Something like 10 times as many tenured professors in math and physics gave money to Kerry as to Bush. Is that who should be instructing our children in the way of reason?

Further, I think it is fair to say that the whole slant of research in pure mathematics can be said to be liberal. It is logical, to be sure, but by working on problems with no forseesable application, as most do, they betray a contempt for the hard realities of the free market.
12.11.2006 4:51pm
Team America (mail):
I agree with the pervailing view (here) on Jon Stewart's shift in the past three years. He lifted his love for his demographics love for him above his previously funny shtick.
12.11.2006 5:05pm
guest from TX:

Not in their research, but in their own personal politics. Something like 10 times as many tenured professors in math and physics gave money to Kerry as to Bush. Is that who should be instructing our children in the way of reason?

Further, I think it is fair to say that the whole slant of research in pure mathematics can be said to be liberal. It is logical, to be sure, but by working on problems with no forseesable application, as most do, they betray a contempt for the hard realities of the free market.


This argument is a perfect example of when one might use sarcasm to refute a conclusory statement masquerading as authoritative. A mathmetician or physicist might mockingly refute the inference that democratic political preferences show a lack of reason (there is a possibility that only mathmeticians and physicists would understand said rebuttal).

Someone might sarcastically ask just who exactly is subject to the hard realities of the free market. In making choices as to who receives governmental subsidies, professors in math and physics might rationally prefer that they receive those subsidies (as they might be more likely to do under Democrats). They might mock the statement that they work on problems with no foreseeable application by pointing to one of the many areas of research where such was originally thought to be the case, but has since become an extremely important part of modern life (electricity perhaps?).
12.11.2006 5:10pm
JunkYardLawDog (mail):
Mark Field,

Certainly parts of Pakistan are enemy battlefield locations in addition to Afghanistan. Egypt and Saudi Arabia certainly have enemy elements within them.

You keep missing the point worrying about what he was charged with or not charged with. He doesn't need to be charged with anything. He's an enemy combatant picked up immediately upon returning from an enemy battlefield location. He can be held without charges for the duration of the conflict to keep him from returning to the ranks of the enemy with whom we are at war.

Says the "Dog"
12.11.2006 5:19pm
Anderson (mail) (www):
Anderson - unlike Judge Sarokin, in your comment above you actually engage with the argument of your opponent. Your remarks are therefore much less open to a legitimate sarcastic attack then are those of the good Judge.

Well, that's what *I* thought, but it wouldn't have done for me to say so ... thanks!

Forgive my ignorance please, but I don't get your argument. Liberal bias in math?

Aieee! DougJ is *spoofing*, people. I failed to read his name &got spoofed myself, above. DougJ is beyond sarcasm, beyond irony, &in a Riemannian feat of ideological spin, has gone around the Right to the Left again. --I mean, if you can trust what the liberal mathematicians say.
12.11.2006 5:33pm
guest from TX:
Ah, so DougJ is showing us a shining example of when sarcasm is effective?
12.11.2006 5:49pm
sbw (mail) (www):
Well, (grinning) I'm not a logic nazi and suspect that alternatives are available:

First to understand how language can be abused -- See Richard Mitchell's Less than Words Can Say which can be found at Amazon, too.

Then consider Sister Miriam Joseph's Trivium.

Next, put Madsen Pirie's How to win every argument on your bookshelf.
12.11.2006 5:52pm
guest from TX:

He can be held without charges for the duration of the conflict to keep him from returning to the ranks of the enemy with whom we are at war.

In one of these discussions,one is never sure whether the quoted statement is itself sarcastic. I tend to be less subtle, myself. For example, I might say: When does this war ever end? When peace reigns on Earth, under the banner of Democracy?
12.11.2006 5:57pm
Anderson (mail) (www):
Ah, so DougJ is showing us a shining example of when sarcasm is effective?

Well, inscrutable, anyway. If we were all convinced today that Swift seriously advocated the cannibalism of Irish children, I'd say his rhetoric would have failed.
12.11.2006 6:06pm
Visitor Again:
I've done penance on a couple of occasions here for failed sarcasm. In a thread about the Supreme Court's citation of international and foreign law, I suggested, in a message filled with what I thought was obvious sarcasm, that the State Department should pull Justice Kennedy's passport. Actually I had no quarrel with Kennedy's use of international and foreign law. Nonetheless, many took my entire message seriously.

It used to be a rule of sorts on the Internet: do not use sarcasm; it is too often misunderstood.

I think it is much easier to use sarcasm effectively when the audience can see the person delivering the sarcasm. Written sarcasm is much more difficult. Recently I have noted people saying at the end of their messages something like sarcasm mode about to be turned off. These people seemed to me to be the least in need of saying anything of the sort since their sarcasm was so plain.
12.11.2006 6:16pm
DougJ:

They might mock the statement that they work on problems with no foreseeable application by pointing to one of the many areas of research where such was originally thought to be the case, but has since become an extremely important part of modern life (electricity perhaps?).



Seems unlikely, given their seemingly congenital inability to grasp the very idea of irony. I mean, when was the last time you saw irony in a Star Trek episode.
12.11.2006 7:01pm
RainerK:
Sarcasm, irony ... Hmm, if they're used without advertising them, I call it arguing in bad faith. Plus the practice merely exposes the arguments as dumb.
12.11.2006 7:49pm
Just an Observer:
JYLD: You keep missing the point worrying about what he was charged with or not charged with. He doesn't need to be charged with anything. He's an enemy combatant picked up immediately upon returning from an enemy battlefield location. He can be held without charges for the duration of the conflict to keep him from returning to the ranks of the enemy with whom we are at war.


That is precisely the principle that the administration was afraid to submit to the Supreme Court for review, which is transparently why DOJ tried to moot the case. If this court confronted the question you pose, a clear majority -- likely led by Scalia -- would smack it down. And if DOJ now tries to reclassify Padilla as an enemy combatant, the court stands ready to act. Kennedy, Roberts and Stevens have made that clear.

Write your president and dare him to try. He runs from the courts like a fugitive.
12.11.2006 7:50pm
Mark Field (mail):

He's an enemy combatant picked up immediately upon returning from an enemy battlefield location.


You're just making this up.

While I don't share JaO's confidence in the size of the majority on the Supreme Court which would reject your argument, I am just as confident that the Administration would lose if it were made. So, apparently, were its lawyers.

In any case, you're still trying to change the subject. My original post commented on the descriptions in this thread of Padilla as "the dirty bomber". As I said above (twice now), he has NOT been charged as such.
12.11.2006 7:58pm
Anderson (mail) (www):
Mark! JaO! The Dog has spoken! Do you want to make him angry or something?
12.11.2006 8:12pm
JunkYardLawDog (mail):
JAO and Mark Field, the highest court to speak on confining Padilla indefinitely as an enemy combatant stated did they not that the President had the authority to hold Padilla the enemy combatant indefinitely. The Supreme Court has not issued a ruling on the subject so the highest court to rule has ruled you are wrong and that the President can hold Padilla as an enemy combatant indefinitely.

Says the "Dog"
12.11.2006 8:40pm
DougJ:
Speaking of sarcasm, is Junkyard Dog for real?

How about David Bernstein?

They both sound an awful lot like a bad imitation of Bill O'Reilly.
12.11.2006 8:43pm
Anderson (mail) (www):
The Supreme Court has not issued a ruling on the subject so the highest court to rule has ruled you are wrong and that the President can hold Padilla as an enemy combatant indefinitely.

I already linked at the other Sarokin thread to what said court, the 4th Circuit, had to say after the feds indicted Padilla rather than subject their argument to SCOTUS review. Futures on the panel opinion went south on that day. And don't forget Scalia's notion of what you do with an alleged traitor: (1) charge him with treason, or (2) release him.

Speaking of sarcasm, is Junkyard Dog for real?

I thought *you* were JYLD, DougJ! But you're not ... so... [looks warily around room; gulps] ...
12.11.2006 8:58pm
DougJ:
I have this awful feeling that the Dog might be real. It's why I left here earlier. He scares me.
12.11.2006 9:22pm
Donald Clarke (www):
You might have added that sarcasm is really, really hard to do well. You have to be a very gifted writer to pull it off if you're going beyond just a one-liner. Shakespeare could do it but most of us can't. Unfortunately sarcasm is one of those areas where people vastly overestimate their own abilities.
12.11.2006 9:29pm
Donald Clarke (www):
Orin, you might have added that sarcasm is really, really hard to do well. You have to be a very gifted writer to pull it off if you're going beyond just a one-liner. Shakespeare could do it in Antony's funeral oration, but most of us can't. Unfortunately sarcasm is one of those areas where people vastly overestimate their own abilities.
12.11.2006 9:33pm
Anderson (mail) (www):
I have this awful feeling that the Dog might be real.

So you say. I think you're even more afraid that he's *not* real, and that you have met your match.
12.11.2006 9:40pm
DougJ:

I think you're even more afraid that he's *not* real, and that you have met your match.



Well....you're right.
12.11.2006 9:52pm
Tom952 (mail):
The word "Sarcasm" is derived from the original meaning "to cut". It refers to any cutting, bitter comment intended to hurt.

Orin may refer to the more specific sarcastic use of the ironic comment. Irony is "the use of words to express something different from and often opposite to their literal meaning", to quote one definition.

When used in conversation and accompanied by context, facial expressions, and gestures, one can speak ironically and make oneself understood, often with good humor.

When used in written communication, irony is prone to misunderstanding. Readers have an amazingly diverse array of contexts when they read your words, and you may find yourself perplexed when you discover a reader wholeheartedly agreeing with the point you intended to lampoon. Irony is a poor tool for the writer intending to make themselves clearly understood.
12.11.2006 10:11pm
Lev:

[OK Comments: Lev, what is your argument? I don't think I understand your point.]


My point in this specific case is that you have been taking off on Carla Levin for engaging in sarcasm against Sarokin, instead of engaging Sarokin's argument.

My point is that Sarokin had no argument. There was no argument to engage. There was no debating to debate. There was only an ex-judge, relying on his status as a former judge, making statements of dislike, unsupported by anything other than his personal opinion as a former judge.

Carla Levin's substanceless sarcasm was an exact reflection of Sarokin's substanceless post, arguing stating "from authority."

As a general matter, using only sarcasm in response to substantive argument makes the sarcasmist look rather stupid. However, as I said, the general case does not apply here. At worst, and at best, they both look substanceless and stupid, because they are.
12.11.2006 11:09pm
JunkYardLawDog (mail):
Anderson the cites you've given are references to mere dicta. It remains true does it not that the highest court to *rule* on the issues says the President has the authority to place enemy combatant Padilla in confinement for the duration of the hostilities.

A citizen on an enemy battlefield fighting USA forces is a traitor absolutely, he may also be shot without trial or warrant, he may be captured and detained without charges for the duration of the hostilities, and he may be charged as a traitor. I'm afraid your dicta quote from Scalia is shown not to accurate in all situations, and therefore a poor indicator of what the law actually might be.

Says the "Dog"
12.11.2006 11:10pm
JunkYardLawDog (mail):
Lev,


unsupported by anything other than his personal opinion


Isn't that the definition of a liberal judge issuing rulings about the constitution??

;)

Says the "Dog"
12.11.2006 11:13pm
Mark Field (mail):

Mark! JaO! The Dog has spoken! Do you want to make him angry or something?


His bark is worse than his bite.
12.11.2006 11:25pm
Mark Field (mail):

It remains true does it not that the highest court to *rule* on the issues says the President has the authority to place enemy combatant Padilla in confinement for the duration of the hostilities.


As stated, this is NOT true. Here's the sequence:

Padilla first brought his habeas petition in the Second Circuit. That Circuit ruled that he could not be held without charge. The Supreme Court reversed, but not on the merits. It held that the petition should have been brought in the Fourth Circuit.

Padilla then brought his petition there. The Fourth Circuit did hold that he could be held indefinitely without charge. However, when Padilla filed his cert petition, the Administration announced it would charge him, thus rendering the whole issue moot.

So the situation is this: the Second Circuit ruled in Padilla's favor, but that was the wrong court. The Fourth Circuit ruled against Padilla, but the Administration's own actions made that opinion moot.
12.12.2006 11:49am
Just an Observer:
Mark Field,

Just to split hairs, the Supreme Court refused to render the Padilla case "moot," which is what DOJ moved to do. DOJ was even willing to vacate the Fourth Circuit's ruling to do so. (See this SCOTUSblog summary.)

SCOTUS simply declined to hear the case at this time because it is now, in Justice Kennedy's words, "hypothetical." He, Roberts and Stevens made it clear that the court to act swiftly to take up the matter again if it ever ceases to be hypothethical -- that is, by moving Padilla's status back to that of a military prisoner held as "enemy combatant."

So the Fourth Circuit's ruling is technically still on the books, but it can't be relied upon in practice. If the administration ever seeks to resurrect it, the issue finally will be litigated at One First Street NE. Bush and his lawyers are afraid to go there.

Tom Goldstein correctly called the unusual opinion (Kennedy/Roberts/Stevens) denying cert a "shot across the bow" of the administration. I see it is a rebuke delievered to the government with velvet gloves, following Judge Luttig's rebuke delivered with a mailed fist.
12.12.2006 1:05pm
lucia (mail) (www):
My point is that Sarokin had no argument. There was no argument to engage. There was no debating to debate. There was only an ex-judge, relying on his status as a former judge, making statements of dislike, unsupported by anything other than his personal opinion as a former judge.

Shoot, this is harsh.

It seemed to me the judge wrote an introductory blog post in which he a) Told potential readers who he is b) and revealed his motivation for starting a blog.

He wasn't using his status to advance any argument or theory. Is he required to hide who he is, conceal his motive for blogging and just post well reasoned argument on something coming straight out of the shute?
12.12.2006 4:02pm