pageok
pageok
pageok
Strange:
In response to my post last night poking fun at both sides of the aisle for their (forthcoming) switch in arguments, Glenn Greenwald writes, with my emphasis added:
George Washington University Law Professor Orin Kerr — a leading apologist for many (though not all) of the lawless and radical Bush policies of the last eight years — last night smugly predicted that Democrats who spent the last eight years opposing executive power expansions and an oversight-free Presidency will now reverse positions, while Republicans who have been vehement advocates of a strong executive and opposed to meaningful Congressional oversight will do the same.
  I suppose if you're going to be labeled an "apologist," it's nice to be a "leading" one. No point in being a following apologist, after all. But does anyone know what "lawless and radical" policies I apparently served as an apologist for? I am genuinely curious. I realize it might just be Greenwald's shtick to throw labels around to describe people who do not always agree with him, but I figured I would ask anyway in case there are some actual examples that I should address.
Suzy (mail):
For what it's worth, I read your post as a very obvious example of wry humor, which was quite well-placed!
11.5.2008 2:43pm
lonetown (mail):
Obviously you offered some defense, somewhere of something Bush did.

My advice: don't feed the trolls.
11.5.2008 2:45pm
ThreeSheets:
Examples? Examples? We don't need no stinking examples.

If I gave examples I would be worried someone would label me a leading apologist for Glenn Greenwald.
11.5.2008 2:48pm
Zubon (www):
I would guess your comments on the USA-PATRIOT Act. Weren't you on Penn &Teller's show for that?
11.5.2008 2:48pm
Matt_T:
The guy writes for Salon. Salon sucks. QED. I wouldn't give it a second thought.
11.5.2008 2:51pm
spool32 (mail):
Ignore Glen Greenwald... he's getting a lot of traction lately by showing his ass and tossing around gratuitous insults.

Best ignored... the Conspiracy is light-years better in terms of quality and content. There's no reason to drive traffic to his site because he took a ridiculous swipe at you.
11.5.2008 2:51pm
Observer:
Hilarious. Of all the bad things of which Professor Kerr may be said to be an apologist, it really wouldn't have occured to me to include Bush's policies (or any conservative policies, for that matter) on that list.
11.5.2008 2:52pm
Andrew Hyman (mail) (www):
Those "lawless and radical" Bush policies are probably the ones where Bush supported the racist and antiquated Constitution of the United States.

By the way, I have no intention of participating in rejectthem.com. :-)
11.5.2008 2:52pm
josh:
I want to state emphatically that while I sometimes agree with Greenwald's positions, I can't stand to read him b/c of stuff like this. The guy has not clue about choosing battles. The VC (minus a few unnamed posters) is filled with reasonable-minded bloggers (Kerr and Volokh to be specific) who, while I tend to disagree with some of their positions, approach the issues fairly and make credible and consistent critiques, even of "their" side.

I distinguish this blog from the Powerlines and Instapundits of the world who, over the last eight years, have done exactly what Prof Kerr's post was all about -- namely, taken whatever position has supported their side. As to the Bush policies Greenwald sees Kerr as an apologist for, I can only assume he is refering to Kerr's analysis of the FISA from soup to nuts. I have to say I have not always agreed with Kerr's analysis (i.e., the tendency to rely a bit too frequently on "unknowns", when new facts repeatedly dribbled out that could lead to reasonable inferences). But I think the analysis had been fair, citing fact and law and including dissenting views (almost always a link to M. Lederman for example).

Things like FISA are complex, legal issues. I, for one, come down on the side that Bush either knowingly or negligently broke the law and similar laws/constitutional prohibitions. But, like I said, it's complex. And taking the position that Greenwald always takes, with the level of certainty that gives no roomk for dissent, is exactly what got us into this whole mess over the last eight years.

Keep up the good work, Prof. Kerr. Here's one liberal who hopes you ignore such trifles.
11.5.2008 2:55pm
Steve:
At least he didn't call you a reflexive apologist. I've always found you to be a very thoughtful and considered apologist.
11.5.2008 2:57pm
Oren:
As I recall, Orin was on record saying that the TSP did violate FISA, as it existed at that time.
11.5.2008 2:58pm
josh:
Oren

I thought he said COULD have violated, depending on facts we don't know. I could be wrong. Wouldn't be the first, or last.
11.5.2008 3:00pm
Leading Greenwald Apologist:
I'm sorry.
11.5.2008 3:01pm
Kevin R (mail):
I stopped reading this post when I got to "Glenn Greenwald". I take his thoughts rather less seriously than I do my cats'.
11.5.2008 3:04pm
mls (www):
People who are quick to accuse others of being "partisan apologists" are usually those most guilty of it themselves.
11.5.2008 3:05pm
Sarcastro (www):
That's what you get for asking that others be civil, Orin!

I think you should keep posting, but contract out to EIDE_Interface to write all your posts.

That'll give Greenwald something to write about!
11.5.2008 3:06pm
Cornellian (mail):
At least he didn't call you a reflexive apologist. I've always found you to be a very thoughtful and considered apologist.

How do you think he got to be a "leading" apologist instead of a mere underling apologist?
11.5.2008 3:07pm
Anderson (mail):
I want to state emphatically that while I sometimes agree with Greenwald's positions, I can't stand to read him b/c of stuff like this. The guy has not clue about choosing battles.

Concur.
11.5.2008 3:08pm
PatHMV (mail) (www):
I seem to recall criticizing you from the pro-Bush side of the fence quite a few times. Oh, well... can't please all the people, etc.
11.5.2008 3:10pm
Brett:
Are you sure that was Glenn Greenwald, and not Thomas Ellers? It also sounds like something that Rick Ellensberg could have written.
11.5.2008 3:11pm
steve lubet (mail):
Dear Orin: The last thing any thinking person would call you is an apologist, given your general objectivity and fairness. Perhaps Greenwald was simply confused by your civility and politeness.
11.5.2008 3:11pm
Curmudgeonly Ex-Clerk (www):
I'm sure that Thomas Ellers or Rick Ellensburg will show up in the comments with a bill of particulars concerning your offenses any time now, Professor Kerr.
11.5.2008 3:12pm
astrangerwithcandy (mail):
maybe prof. kerr owes greenwald a beer?
11.5.2008 3:13pm
Simon P:
Come to think of it, I can't say I can guess how the VC'ers come down on the implications of Obama's victory for the SC make-up.

On the one hand, some VC'ers definitely seem to be strict constructionists and thus in favor of narrowly interpreting Congress's Article I powers and, I'd suppose as well, narrowly interpreting Article II.

But then other VC'ers might be fairly taken to favor fairly expansive interpretations of the Bill of Rights, including especially the First and Second Amendments (though I enjoy the Fourth Amendment posts we get from you, Orin; that's just not an amendment we get enough exposure to in law school). These posters might be interested in historical support for their positions (see earlier coverage on Heller), but I don't read them to find such historical support a strictly necessary condition for their support for, say, an individual right to bear arms.

Obama's election suggests that what we're going to have probably the same contour on many of these issues for some time, depending on who ends up getting to name Kennedy and Scalia's replacements. McCain's election, on the other hand, would have indicated a major shift, under which we might plausibly have seen not just a chipping away at Roe and Griswold but on Congressional authority under section 5 of the Fourteenth Amendment, some hardening on the Fourth, and potentially even some adjustments to the First (I'm thinking in particular of the EC, maybe?). A Reagan/Bush/McCain Court would also have been something of a wild card on the developing Second Amendment caselaw that's to come, wouldn't it have been?

On balance, I'd say, Obama's victory (by protecting the liberal minority bloc) will help to ensure something of a status quo on constitutional liberties (if not some minor expansion, say, along the lines of Loving) while the young conservative bloc will help to hold the developing line on state's rights and perhaps push back a bit on Congressional power (this seems to be kind of Scalia's baby, doesn't it?). A McCain victory, on the other hand, while perhaps being a boon for economic liberty and even marking a real victory for states-righters, seems almost certainly also to have threatened a substantial contraction of individual freedoms, particularly in the "penumbra" of privacy. Is that something VC'ers were hoping for?
11.5.2008 3:15pm
jimzinsocal (mail):
Brett^^above. Just what I was thinking.
I weould examine the piece more carefully for strands of wool or cotton...
11.5.2008 3:16pm
runape (mail):
I thought that was funny as well. Greenwald certainly has a way with words, if not thoughts.
11.5.2008 3:23pm
runape (mail):
Incidentally, Doug E.G. thinks you are frivolous and juvenile. You're on a roll.
11.5.2008 3:25pm
MLS:

But does anyone know what "lawless and radical" policies I apparently served as an apologist for?


I have also wondered about such policies. Does that likewise classify me as an apologist?
11.5.2008 3:25pm
Ex-Fed (mail) (www):
I'm almost certain it was that post where you celebrated pyramids of naked prisoners.
11.5.2008 3:31pm
wfjag:
Dear Prof. Kerr:

Just wish him "Happy Guy Fawkes Night" and move on to the next topic.
11.5.2008 3:37pm
Sarcastro (www):
Ex-Fed

Hey now! The naked man-stacking was good for America!
11.5.2008 3:40pm
Mike Keenan:
You have hidden your "apologist" credentials well.

Somehow, I think the Bush-haters are still waiting for him to annul the election and seize power.
11.5.2008 3:53pm
Anderson (mail):
Somehow, I think the Bush-haters are still waiting for him to annul the election and seize power.

Bush, I think, is tired and wants to go home.

Cheney certainly seems by contrast to batten upon power, but he would have to hire Blackwater to carry out his coup. I wonder if they take American Express?

Now I can read the Cheney study that Prof. Kerr recommended ... frankly, I was waiting to be sure that it was past history I was going to be reading, and not a story with a sequel impending.
11.5.2008 3:59pm
commontheme (mail):
I don't follow the VC closely enough to be able to point to any particular threads authored by Mr. Kerr that fit this criteria, but the VC has been blase at best about the abuses of the last 8 years.
11.5.2008 4:10pm
Michael Kessler:
Gee, for what it's worth, this progressive has, on the whole, found you one of the more fair bloggers on this site.
11.5.2008 4:26pm
einhverfr (mail) (www):
Yeah, I am somewhat worried about this. However, in the end, I think that Obama's record is sufficiently better than McCain's to warrant giving him at least a shot.
11.5.2008 4:38pm
Joshua Herring (mail) (www):
Glenn Greenwald is a(n) hysteric. Nothing to see here.
11.5.2008 4:40pm
tsotha:
Bah. If you can judge a man by his enemies, you're doing just fine.
11.5.2008 4:42pm
Bruce:
Also, how do you "smugly predict" that your own side is going to blatantly and opportunistically change all of their arguments? Face it Orin: not only are you smug, but you're just not that good at it.
11.5.2008 4:45pm
hey (mail):
With the people who support him and whom he will appoint to positions, expect to see kangaroo courts punishing "Bush apologists" within 6 months. The Weathermen won and we will now get to see the fruits of their revolution.

Canada sucks this time of year, but at least it isn't run by communist terrorists and Jihadist apologists like the US will be as of Inauguration day. See Israel before Obama helps Iran nuke it.
11.5.2008 4:52pm
Vermando (mail) (www):
Ex-fed wins the thread.

Count me amongst those who would not characterize you as an apologist based on your work here. Dude was talking out of his bum.
11.5.2008 4:59pm
roy:
Don't take Greenwald seriously. He reads like a strawman of his own beliefs.
11.5.2008 5:48pm
elim:
will that many conservatives be upset if Pres. Obama goes after islamic radicals? I doubt it. They'll be shocked but I doubt they'll be upset. Maybe pleasantly surprised? much like President Bush's homeless rediscovery watch, you are going to see the President Obama "there are terrorists out there who are actually dangerous and mean to do us harm rediscovery watch" amongst the leftist media.
11.5.2008 5:50pm
zippypinhead:
Three thoughts:

1. And you're surprised, why? It's just payback time -- obviously at some point Greenwald was doing his usual outrageous flame-trolling under a pseudonym in a thread on one of your posts, and you banned him. Serves you right for trying to enforce minimal standards of discourse (if not the "OK Fairness Doctrine?");

2. I'm still ROTFL at somebody who can non-slanderously be called an "ex-CLINTON/RENO Justice Department attorney" getting called a Bush "apologist." Oh wait... I just outed you right here in front of everybody on VC, didn't I... Oops! Sorry... ;

and/or

3. Not only does Ex-fed win the thread, we need to nominate his comment for the VC Hall of Fame (we can easily bump one of Sarcastro's posts if the HoF is already full)!
11.5.2008 6:04pm
Politically Lost (mail):
Professor Kerr,

It appears Greenwald has answered your question.
11.5.2008 6:10pm
kingfelix (mail) (www):
Nice reflexive insult-throwing. GG hands it to you bunch of know-nothings, sat there feeling superior without bothering to engage - complacent fools.
11.5.2008 6:33pm
zippypinhead:
Professor Kerr -- but what should we make of the very next sentence in Greenwald's spew after the excerpt you quoted: "I have no doubt that he's right to some extent..."

Incidentally, I may not stop snickering until bedtime at Greenwald's "update" in which he castigates you for "using professorial and self-consciously cautious language." Apparently he has some difficulty recognizing legal analysis when he sees it. NYU really ought to retroactively revoke this guy's J.D. (then again, given what I've read about Greenwald's involvement with Matt Hale back when Greenwald was in his Hobbesian legal career ["poor, nasty, brutish and short"] maybe NYU already has).
11.5.2008 6:40pm
sjalterego (mail):
Don't waste your time worrying about it.
11.5.2008 6:43pm
astrangerwithcandy (mail):
as someone who has never been called out in any medium, i am curious as to how one responds. is there a protocol? do you send a private email to greenwald? do you ignore it? do you respond with some kind of statement through some medium?

(obviously, it appears prof. kerr has responded in some kind through this blog post)
11.5.2008 6:53pm
LM (mail):
Anderson:

I want to state emphatically that while I sometimes agree with Greenwald's positions, I can't stand to read him b/c of stuff like this. The guy has not clue about choosing battles.

Concur.

Ditto. Stuff like discredits Greenwald's worthwhile efforts.
11.5.2008 6:56pm
Joe Bingham (mail):
Wow, it's one thing to be a jerk, but this guy is just a liar. Hopefully Prof. Kerr will be proud of me for not using any other of much broader spectrum of words that Greenwald brings to my mind.
11.5.2008 6:59pm
roy:
Greenwald's response suggests his original post is a straight-up appeal to moral authority. He wants Kerr's analysis to be incorrect but can't counter it, so he calls Kerr a bad man for making that analysis.

Greenwald doesn't have much other choice. Kerr posted his support for bipartisan laws restricting surveillance. Kerr compared a journalists description of a law to the law and refers to Bush's "very likely unlawful monitoring". Kerr criticized a judge's reasoning in deciding against the DOJ but writes the the "DOJ should have lost anyway, even if for reasons that Judge Taylor didn't expain". Greenwald casts all of these posts as apologizing for Bush's policies, when they're mostly tangential to policy when not critical of Bush's and supportive of biparisan policy.

Sadly, Greenwald is discouraging his readers from understanding the law in technical terms when he insists on presenting Kerr's posts in normative terms.
11.5.2008 7:00pm
LM (mail):
commontheme:

I don't follow the VC closely enough to be able to point to any particular threads authored by Mr. Kerr that fit this criteria, but the VC has been blase at best about the abuses of the last 8 years.

At least re: OK on these issues, you say blase, I say temperate. Tomato, tomahto? Maybe not. Regardless, it's the dispassionate indictments by people like Orin with no ax to grind that can't be waved off as partisan mudslinging or BDS.
11.5.2008 7:14pm
roy:
I will say, though, that the post on Al-Marri v Wright can reasonably be interpreted as apologizing for / supportive of Bush's policies.
11.5.2008 7:14pm
Jay Ballou (mail):
does anyone know what "lawless and radical" policies I apparently served as an apologist for

If you don't know, then you're the only one who doesn't. Even if you don't accept that they are lawless and radical, only a fool wouldn't know which policies Greenwald is referring to. But rather than being a fool, you play one.
11.5.2008 9:35pm
Jay Ballou (mail):
Why are there virtually no intelligent comments here, with the exception of Simon P's?
11.5.2008 9:42pm
bachelard (mail):
Are you kidding? Read the update to his post. It's here.

In case you can't work the link, I'll summarize:

1.Your position on the Protect America Act
2.Your disagreement with Judge Anna Diggs Taylor's decision regarding the NSA warrantless surveillance program
3.Your disagreement with the Fourth Circuit's decision in Al Marri v. Wright
4.Your support of the FISA amendment act of 2008.

That's about it. Of course, anyone reading this thread knows you know very well what GG is talking about.
11.5.2008 9:52pm
NR:
I'm surprised Greenwald didn't use Repeated Sarcastic Capitalization to make his point. Instead of calling Orin a "leading apologist" for the Bush administration, wouldn't it have been more effective to call him a "Supreme Guardian of Our Beloved Leader's Vital and Unquestionable Policies" or something to that effect?

Also, Greenwald's critique would have had a bit more punch if he had called Orin "venal," "craven," and "corrupt." I find it's always best to throw adjectives like that around when accusing people who don't completely agree with me of bad faith.

Other than that, Greenwald's post was literally 100% spot-on.
11.5.2008 10:05pm
Bleepless:
One of Greenwald's dominant characteristics is his frequent use of sock puppets. Any supportive comment stands a good chance of being his very own.
11.5.2008 10:08pm
bachelard (mail):
"One of Greenwald's dominant characteristics is his frequent use of sock puppets. Any supportive comment stands a good chance of being his very own."

Let's see. The man has one of the most popular blog columns on the Internet. His posts routinely attract hundreds of comments. He produces regular podcasts. He's written two best-selling books.

And you think he spends his "spare time" assuming fake identities on other sites? Want to provide some proof of that or should we just assume anyone who defends him -- me, for example -- is a sock puppet?

Man....
11.5.2008 10:26pm
therut (mail):
Hard core leftists have no sense of humor. To them the political is the religious and poking fun at them is blasphemy. The poor guys whole essence of being has been offended.
11.5.2008 10:34pm
tsotha:
Let's see. The man has one of the most popular blog columns on the Internet. His posts routinely attract hundreds of comments. He produces regular podcasts. He's written two best-selling books.

The fun of a Gleen post is usually to pick out what name he's posting under, but this is way too easy. He goes around poking people until someone responds in an effort to drive traffic to his site. Although he touts himself as an expert on constitutional law, his short legal career was apparently that of a garden-variety litigator in a non-prestigious firm.

Other than that, Greenwald is totally worth taking seriously.
11.6.2008 12:14am
David Warner:
Lie down with a rabid dog, you'll get bit. What's next, People for the American Way? Doh!
11.6.2008 1:52am
Curmudgeonly Ex-Clerk (www):
Bachelard:

The evidence for sock-puppetry was already linked above, but here it is again just for you; the evidence seems rather substantial and I've not seen anything to the contrary. Do you have an alternative explanation?
11.6.2008 11:25am
DG:
Curmudgeonly Ex-Clerk - I give you one guess on who "Bachelard" is. Either GG or his press agent.
11.6.2008 12:51pm
anomdebus (mail):
DG, Curmudgeonly Ex-Clerk,

No, that is written in the style of his old sock-puppets.

I would count it unlikely that it is actually him. 1, because it would be trivial to mix it up and write it in a different way and 2, he has alot more readership now and has other people available do his evangelizing for him.
11.6.2008 1:22pm
Crust (mail):
Curmudgeonly Ex-Clerk:
The evidence for sock-puppetry was already linked above, but here it is again just for you; the evidence seems rather substantial and I've not seen anything to the contrary. Do you have an alternative explanation?
For an alternative (and, frankly, far more plausible) explanation, see here (btw, Steven Taylor is right of center, as is Jon Henke who concurs in comments).
11.6.2008 1:22pm
Curmudgeonly Ex-Clerk (www):
Crust:

I genuinely appreciate that link with the possible alternative explanation. I had not seen that, and I thank you. That does indeed seem like a plausible alternative, particularly given Greenwald's own oblique comment on the issue.

That said, the alternative explanation (that someone in Greenwald's own household -- specifically his partner -- is responsible for making those comments under multiple false names) is still not very flattering. I would think that most of us would be embarrassed by such support.
11.6.2008 1:42pm
Crust (mail):
My pleasure, Curmudgeonly Ex-Clerk. As to guessing what this means, I agree with Jon Henke's comment.
11.6.2008 2:14pm
Bleepless:
If the explanation is not sock puppetry but someone in the household, why has Greenwald not mentioned it? Surely, there is nothing dishonorable about this.
It looks like some people are inventing excuses by multiplying factors without facts.
11.6.2008 2:26pm
Crust (mail):
Bleepless, as CEC noted, Greenwald hinted at this in his own denial of sockpuppetry. Perhaps GG judges it distasteful to explicitly drag his partner -- who is not at all a public figure -- into the kleig lights over this.
11.6.2008 2:46pm
LM (mail):

I would think that most of us would be embarrassed by such support.

I'd disavow it as inappropriate, but I wouldn't be at all embarrassed by it. I'd only be grateful for expressions of loyalty by a loved one, however misplaced or poorly executed.
11.6.2008 4:30pm