Blog on the Run: Reloaded

Monday, June 8, 2009 9:20 pm


Ed Whelan is, according to his bio box, “the President of the Ethics and Public Policy Center. … [and] a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia; [he] has served in positions of responsibility in all three branches of the federal government. From just before the terrorist attacks of September 11, 2001, until joining EPPC in 2004, Mr. Whelan was the Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. In that capacity, he advised the White House Counsel’s Office, the Attorney General and other senior DOJ officials, and Departments and agencies throughout the executive branch on difficult and sensitive legal questions. Mr. Whelan previously served on Capitol Hill as General Counsel to the U.S. Senate Committee on the Judiciary. In addition to clerking for Justice Scalia, he was a law clerk to Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit. Mr. Whelan also previously worked as Senior Vice President and Counselor to the General Counsel for Verizon Corp. and as a lawyer in private practice.”

So you would think that with all that high-level lawyerin’ under his belt, Mr. Whelan would be able to take a little criticism, perhaps even give as good as he got.

You would be wrong.

First, Whelan posted a (lame) piece at his NRO blog criticizing the notion that justices make policy, prompted by Supreme Court nominee Sonia Sotomayor’s observation to a group of law students that appeals courts, as opposed to district courts, do that sometimes.

The pseudonymous Publius at Obsidian Wings points out that “everyone who has spent a week in law school knows that courts do policy.  It’s inherent to the process — and it’s often inherent to the very text and doctrine at issue.” He then links to a critique — actually he calls it a decimation, and to this nonlawyer that looks, if anything, like an understatement — of Whelan’s position by Eugene Volokh of the well-known legal blog the Volokh Conspiracy.

” … don’t feel sorry for Ed,” Publius writes of Volokh’s piece. “[Whelan]  knows all this — he’s a smart guy with outstanding legal credentials.  He just enjoys playing the role of know-nothing demagogue.” He also links to this characterization of Whelan by the pseudonymous blogger Anonymous Liberal:

This is Whelan’s role in the conservative world, his niche. He’s the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee. He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he’s doing. It’s willful. He’s essentially a legal hitman, someone who provides the “expert” opinion that the right wing echo chamber then uses as the basis of its attack campaign.

So how does Whelan, this experienced, consummate legal professional, respond? By publishing publius’s real name and professional affiliation.

He responds like a whiny baby, in other words. Worse, he responds in the manner of someone who, from the standpoint of merits of argument, has got nothin’.

I blog under my own name. Always have. (Presumably always will, although it’s possible some future employer might want some say in that.) I’ve been fortunate to be able to do that. A lot of people aren’t as fortunate — they have personal or professional constraints, yet still believe they can contribute something valuable to some online conversations. It is beyond malicious and, depending on the consequences, could be borderline tortious, to out someone the way Whelan has. (Besides, if he’s all that angry, Anonymous Liberal is the one who really slagged him; all publius really did was link.)

I won’t say I would never out a pseudonymous/anonymous blogger or commenter — never is an awfully long time — but it would take an extreme set of circumstances to make it happen. In the case of hostile, personally abusive commenters who have added nothing to the conversation, banning has sufficed. Even when I’ve found out who they are in real life, which I’ve done more than once, I haven’t outed them, and I almost certainly never would. As far as I’m concerned, they’re free to go anywhere else on the Internet they want to say what they want about me, as long as it’s either factually accurate or constitutionally protected opinion, whether under their real name or otherwise. What purpose would outing serve? The only circumstance I can think of off the top of my head in which I might out somebody would be if I found out that I was being pseudonymously slagged by a public official on the public’s time. But even then, I’d probably just approach the individual directly and invite him to either just communicate directly with me or else take responsibility for his public comments.

It’s just a nasty, juvenile thing Whelan did. And if I were in the market for a lawyer, or knew someone who was, I’d say that his behavior in this case is a major strike against his character.

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