Critique of “Disinformation on Judges,” by Thomas Sowell

(Logic) English 2 – Critical Thinking and Writing (Spring 2007)

Critique of “Disinformation on Judges,” by Thomas Sowell

[Students and professors, please read.]

Critique of “Disinformation on Judges,” by Thomas Sowell

The title of Thomas Sowell’s paper, “Disinformation on Judges,” has the reader believing s/he is going to be critiquing an essay arguing for or against spreading disinformation about judges, or perhaps an essay refuting particular disinformation.  What the reader finds instead is that only three of ten paragraphs actually fit the title, and of the two premises presented to support the conclusion that conservative judges are not “activists” as are liberal judges – one premise is offered without any basis and does not support the conclusion, and one is an ad hominem tu quoque.  In the rest of the essay, claims are made that do nothing to relevantly support the conclusion demanded by the title, many of those claims being either straw men or proof surrogates, and by the end of the essay it is certain that Sowell has wandered off after his own red herring.

It is necessary here to present Sowell’s central beef, considering he does not get to it until the fifth paragraph, and then you will see how there is no argument (no Wizard of Oz?) here:  “A disinformation campaign has already been launched to depict judges who believe in following the written law as being ‘activist’ conservatives.”  One would think he would go on to refute this depiction.  Here’s what he does instead…

After an introductory paragraph which does not quote any liberals or offer any other proof to support the claim that “judges who decide cases on the basis of the plain meaning of the words in the laws … are anathema to liberals,” (foreshadowing of the smokescreen to come) three paragraphs are presented that could be entirely left out of the essay.  The first of these irrelevant paragraphs explains how the phenomenon of unelected judges is beneficial to liberals, because “liberals cannot get enough votes to control Congress or most state legislatures.  Unelected judges can cut the voters out of the loop and decree liberal dogma as the law of the land.”   This explanation is given without quoting any liberals to confirm that this genuinely reflects their thinking, or providing any examples of a judge’s decision which favored a liberal position as a result of their being ‘unelected.’  The second of these irrelevant paragraphs is just a sentence that says liberals want to keep the judges unelected, presumably so that they can maintain the previously mentioned benefits, again without showing proof for that.  The third of these paragraphs, an argument that would fit better in a paper titled “Literalism Vs. Ad-libbism,” returns to the literal interpreting of the law mentioned in the introductory paragraph, giving no examples to support the irrelevant claim of “liberal activist” judges ad-libbing.  All this beating-around-the-bush beautifully stirs up the dust for a smokescreen.

Finally, by the fifth paragraph, the paper earns its title:  “A disinformation campaign has already been launched to depict judges who believe in following the written law as being ‘activist’ conservatives, just like liberal activists.”  From this the reader can see that Sowell clearly thinks ‘activist’ should only apply to liberals.  The suggestion that a “disinformation campaign has already been launched” against conservative judges, has strong emotive (or rhetorical) force, communicating that it is too late to prepare for or stave off an attack, implying the liberals are irrationally and aggressively impulsive (this would be ‘innuendo’).  And still no liberals are quoted as evidence of this attack – do they really attack conservative judges for “following the written law”?  It would be helpful if at least one liberal were quoted using the phrase “conservative activists.”

Sowell then offers the first of two relevant premises intended to support his conclusion.  He argues that those who apply the term “activist” to conservative judges can “seldom, if ever, come up with concrete examples where conservative judges made rulings that went directly counter to what the written law says or who made the rulings for which there is no written law.”  The phrase “seldom, if ever” is a curious one, indeed.  Shouldn’t Sowell be aware whether it is seldom, or ever, and, if seldom, defend against the examples?  As-is, Sowell seems to be stating that those who use the phrase “conservative activists” can’t say conservative judges aren’t Sowell’s definition of “conservative” (which can be deduced from his introduction:  “judges who decide cases on the basis of the plain meaning of the words in the laws,”).  This does nothing to support how the phrase “conservative activist” is disinformation.

Sowell’s second of two relevant premises is an ad hominem tu quoque, pseudoreasoning that, unlike conservative judges, liberal judges fit his definition of “liberal activists” because they make decisions based on “‘evolving standards,’ ‘world opinion’ or other such lofty hokum worthy of the Wizard of Oz.”  This is an ad hominem tu quoque because, instead of arguing why the phrase “conservative activist” is disinformation, Sowell is in essence saying “there are no conservative activist judges because the only ones claiming this are liberal activist judges”.  The first question that occurs to the reader is “Who is Sowell quoting as saying they make decisions on ‘evolving standards’ and/or ‘world opinion’?”  This is either a straw man or a proof surrogate.  If it is a proof surrogate, a second question arises:  The man behind the curtain (the Wizard of Oz) used smoke and mirrors (“lofty hokum”) to make himself seem bigger and more like ‘a force to be reckoned with’ – is Sowell using innuendo to imply this is why liberals use “such lofty hokum,” or is this a false analogy?  At any rate, it does nothing to support how the phrase “conservative activist” is disinformation.

For most of the three remaining paragraphs, Sowell latches on to his Wizard of Oz reference and follows after his own red herring that it is not wrong to criticize “that man behind the curtain” (liberal judges).  It is an interesting turn of the tables, as he started out arguing against a “disinformation campaign” on conservative judges and is now arguing in favor of what he denies is “an attack” (by an unstated foe we may tentatively refer to as Straw Man) on liberal judges (let me explain).  In the first of these three paragraphs he quotes unnamed liberals as saying (using their Wizard-of-Oz-style “lofty hokum”), “Don’t attack our judges.”  But one must ask:  Does the “lofty hokum” attributed to liberals (without proof) communicate, “Don’t attack our judges”?  It certainly doesn’t seem to, which supports my thinking that the Wizard of Oz reference is a false analogy.  Furthermore, no liberals are quoted as saying anything close to “Don’t attack our judges.”  In the second of these three final paragraphs Sowell says “even some conservative Republicans have fallen for this line,” but, considering no liberals are quoted, it seems more likely that it is the conservative Republicans who have “created” this line.  Rather than quoting multiple conservative Republicans, Sowell quotes one, saying Theodore Olson “recently condemned ‘personal attacks’ on judges by their critics” without acknowledging that Olson did not specify “liberal judges”.  He criticizes Olson for lumping those critics in with “criminals or crackpots who have committed violence against judges or their family members” (without quoting Olson to prove that he did lump them all together), and if this is true, it seems like a justified criticism, as such a comparison is rather blown out of proportion (hyperbolic false analogy).  Even if one conservative Republican goes overboard in his condemnation of criticism of judges, he doesn’t specify “liberal” judges, and he could very well have originated the idea “Don’t condemn our judges” – rather than it originating from the liberals.  A discussion on whether or not it is wrong to criticize judges does nothing to support Sowell’s claim that “conservative activist” is disinformation.

In the third of the three final paragraphs, what is supposed to be the conclusion, but contains no link to the title of the essay, Sowell strings together a series of appropriately unrelated sentences that recap the unrelated paragraphs of his essay, after first concluding the previous red herring with, “Criticizing someone’s official conduct is not a ‘personal attack.’  Nor does criticism equate with violence.”  This statement diffuses the emotive force of his earlier mention of a “disinformation campaign … already … launched” against conservative judges, and the overall red herring that it is not wrong to criticize judges actually serves to support such a campaign.  Sowell finishes the paper off with, “Nor is the rule of judges the same as the rule of law.  Too often it is the rule of lawlessness from the bench.”  Note that “lawlessness,” when you’re talking about judges, is hyperbole.  Read in the context of the previous two sentences, Sowell is unintentionally communicating that no judges think the rule of judges is the same as the rule of the law, that they think it should be the rule of lawlessness from the bench.  However, since this clashes with what he has communicated about his perception of conservative judges versus the liberal mind thus far, we can safely assume it is just poor syntax.  Furthermore, he should have left those sentences out of his essay altogether, as they have nothing to do with the central argument.

In conclusion, “Disinformation on Judges” by Thomas Sowell was a very poorly written essay that makes all sorts of assumptions about what liberals are thinking without ever quoting one (many straw men, or many proof surrogates, or a combination of both), often wanders away from the issue in question (a couple of smokescreens/red herrings), commits a couple false analogies, commits an ad hominem tu quoque, and leans heavily on rhetoric like a giant on a twig for support, including innuendo and hyperbole.  There is not a single strong, redeeming argument made in support of Sowell’s claim that there are no “conservative activist” judges, or in the words of his title, that there is “disinformation on judges”.