Professor Xiao Wang in the Minnesota Law Review refuted the position I do not hold.

Last week, How Appealing linked to a new Minnesota Law Review article by Professor Xiao Wang titled “The Old Hand Problem.” The thesis of the article is that judges strategically perceive a higher status. That is, judges appointed by Republicans occupy a higher status during a Republican administration. And judges appointed by Democrats gain higher status during Democratic administrations. Tell me something I don’t know. Indeed, not long after the 2020 election, I wrote a blog post titled “For a Democratic President to Assume Higher Status?” I teased an article I was working on with James Phillips “on judges who strategically time their take on higher status.” James and I actually started writing that article, but eventually gave up, in part, because the conclusions confirmed the conventional wisdom.

I glanced at Wang’s article and didn’t think much of it. (The title, however, seems like a mixed metaphor, as “Old Hand” is usually a positive word referring to someone with skills or experience).

But then reader Volokh marked a paragraph about me in the article:

The data also suggest that Republican-appointed judges acted in significantly more politically strategic ways than their Democratic-appointed counterparts. That finding contradicts Josh Blackman’s idea that judges are only now taking on higher status to benefit President Biden and the Democratic Party. This assumption is not supported by the data. Truth: Both sides may be playing a game of strategic retirement. But it’s also true: one party — the Republican Party — is much better at the game than the other. During the Trump administration, for example, nearly a hundred more Republican-appointed judges sought higher status than their Democratic counterparts—an absolute difference that amounts to more than ten percent of the judiciary.8 In any case, the percentage changes we witnessed are significant for both foreign and historically unprecedented.

Ha? I never, ever said that. I am well aware that Republican judges have strategically determined their higher status. And nothing in my blog post supports that claim. Not a single word. And Wang does not include any support or brackets for the proposition.

Wang repeats this claim later in the article, almost verbatim:

Third, these numbers refute Josh Blackman’s suggestion that judges have now begun to assume higher status to benefit the Democratic Party—that is, that this strategic behavior has only recently become apparent, in order to give President Biden an opportunity to shape the judiciary.

Again, I never said it was some new trend since Biden was in office.

Allow me to be charitable. Perhaps Wang could have written that Blackman was just discussing the issue of judges taking senior status now that a Democrat is in the White House, creating the inference that there is some kind of new behavior. But for me to make such a statement, Wang would have to be sure that I never wrote about the strategic assumption of higher status during the Trump years. But of course I did. In December 2017, I wrote for National Review that the judges were appointed by Republicans you should take a higher status so that Trump gets more seats. I mentioned the names. (And a few people I appointed weren’t exactly happy with me; welcome to my world.) And many of the judges I appointed actually took higher status when they were eligible. I wrote:

By my count, there are over 100 judges appointed by Presidents Ronald Reagan, George HW Bush, and George W. Bush who can immediately open new vacancies by announcing a plan to leave active duty, either upon confirmation of their successor or at a future date. They should be encouraged to do so during the next year.

Wang should have quoted my National Review article in support of this thesis! We agree!

This is about the author’s failure to accurately cite the source, and the editor’s failure to check the sources. What’s more, it’s all too common for authors to tease student editors with lofty claims like “I’m challenging conventional wisdom” or “I’ve proven so and so wrong.” The latter claim is especially attractive when the author shows that conservatives are worse than liberals, or worse, the conservative author is a hypocrite. (That is me.). The diary here is snookered.

I emailed both Wang and the magazine. They replied that there would be no correction. Therefore, this blog post will serve as an answer.

May I give some advice to the editors: if you ever say someone is wrong, actually quote them. Don’t paraphrase them. Don’t take a few words out of context. Quote them extensively. Cite the exact point you say is wrong. And when you do, stop short of actually saying they’re wrong. Make it soft. The author may have made a mistake when he wrote… The author did not take into account… The author did not take into account… And so on. But don’t write that your work “contradicts” what someone else has written – especially when the person you’re criticizing is supports your job.

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