Last week, the Minnesota Law Review featured a new article by Professor Xiao Wang on how to appeal, titled “The Old Hand Problem.” The essay’s thesis is that judges strategically take senior status. That is, Republican-appointed judges assume seniority during Republican administrations. And democratically-appointed judges assume senior status during democratic administrations. Tell me something I don’t know. In fact, shortly after the 2020 election, I wrote a blog post titled “For a Democratic President to Take Senior Status?” I teased an article I was working on with James Phillips about “judges who strategically take their senior ranks.” James and I actually started writing that article, but we eventually abandoned the effort, in part, because the conclusions confirmed conventional wisdom.
I glanced at Wang’s article and didn’t think much of it. (Though the title seems like a mixed metaphor, as an “old hand” is usually a positive term that refers to someone with skill or experience).
But then a Volokh reader flagged a paragraph about me in the article:
The data also suggest that Republican-appointed judges act significantly more politically strategically than their Democratic-appointed counterparts. This finding contradicts an idea raised by Josh Blackman that judges are taking senior status only to benefit President Biden and the Democratic Party. This assumption is not borne out by the data. Fact: Both sides are playing a strategic retirement game. But it’s also true: One side—the Republican Party—is playing much better than the other. For example, during the Trump administration, nearly a hundred more Republican-appointed judges sought senior status than their Democrat counterparts—an absolute difference of more than ten percent of the judiciary. For both parties and historically unprecedented.
Huh? I never, ever said. I am well aware that Republican judges have strategically timed their senior status. And nothing in my blog post supports that proposition. Not a word. And Wang does not include any support or brackets for the proposal.
Wang repeats this claim later in the article, almost verbatim:
Third, these numbers refute Josh Blackman’s suggestion that judges are now taking senior positions to benefit the Democratic Party—that is, this strategic behavior has recently come to light, to allow President Biden to shape the judiciary.
Again, I never said this was some new trend since Biden was in office.
Let me be charitable. Perhaps Wang could have written that Blackman only discussed the issue of judges taking senior positions now that a Democrat is in the White House, creating the assumption that there is some kind of new behavior. But to make a statement like that, Wang would have to be sure I never wrote about him taking strategic senior status during the Trump years. But of course I did. In December 2017, I wrote for National Review that Republican-appointed judges should Take senior status to give Trump more seats. Named (And some of the people I named were not too happy with me; welcome to my world.) And many of the judges I named actually took senior status when they were eligible. I wrote:
By my count, there are more than 100 judges appointed by Presidents Ronald Reagan, George HW Bush, and George W. Bush who can immediately Open new vacancies by confirming their successors or announcing plans to leave active service at a future date. They should be encouraged to do so next year.
Wang should have cited my National Review piece as support for this thesis! We agree!
Here, we have the author’s failure to properly cite a source and the editors’ failure to check the source Furthermore, for writers, “I challenge conventional wisdom” or “I’ve been proven so-and-so wrong.” The latter claim is especially interesting when the writer shows that conservatives are worse than liberals, or worse, that a conservative writer is a hypocrite. (That’s me.). The journal was snookered here.
I emailed both Wang and the journal. They replied that there would be no amendment. So this blog post will serve as a rejoinder.
May I give some advice to editors: If you ever call someone wrong, actually quote them. Don’t paraphrase them. Don’t take a few words out of context. Quote them at length. Cite the exact point you are saying is wrong. And once you’ve done that, actually stop short of saying they’re wrong. Soften it. The author may have made a mistake when he wrote… the author failed to consider… the author did not account for… etc. But don’t write that your work “contradicts” what someone else wrote—especially when it’s the person you’re criticizing supports Your work.