Professor Xiao Wang in the Minnesota Law Review Refutes A Position I Do Not Hold

Last week, How Appealing linked to a new article in the Minnesota Law Review by Professor Xiao Wang, titled "The Old Hand Problem." The thesis of the article is that judges take senior status strategically. That is, Republican-appointed judges take senior status during Republican administrations. And Democratic-appointed judges take senior status during Democratic administrations. Tell me something I don't know. Indeed, shortly after the 2020 election, I wrote a blog post titled "Which Ninth Circuit Judges Were Waiting For A Democratic President to Take Senior Status?" I teased an article that I was working on with James Phillips "about judges who strategically time their taking of senior status." James and I in fact did start writing that article, but we ultimately abandoned the effort, in part, because the conclusions confirmed conventional wisdom.

I glanced at Wang's article and didn't think much of it. (The title, though, seems like something of a mixed metaphor, because an "Old Hand" usually is a positive word that refers someone with skill or experience).

But then a Volokh reader flagged a passage about me in the article:

The data also suggests that Republican-appointed judges have acted in a significantly more politically strategic manner than their Democratic-appointed counterparts. That finding contradicts an idea, put forth by Josh Blackman, that judges are only just now taking senior status to benefit President Biden and the Democratic Party. This conjecture is not borne out by the data. True: both sides may be playing the game of strategic retirement. But also true: one side—the Republican Party—is much better at playing the game than the other. During the Trump administration, for instance, almost a hundred more Republican-appointed judges sought senior status than their Democrat counterparts—an absolute difference accounting for more than ten percent of the Judiciary.8 At any rate, the percentage swings we have witnessed are significant for both parties and are historically unprecedented.

Huh? I never, ever said that. I am well aware that Republican judges strategically timed their senior status. And nothing in my blog post support that proposition. Not a single word. And Wang doesn't include any support or parenthetical for the proposition.

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

Third, these numbers rebut the suggestion made by Josh Blackman that judges have started taking senior status now to benefit the Democratic Party—i.e., that this strategic behavior manifested only recently, to provide President Biden an opportunity to shape the Judiciary.

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

Let me be charitable. Perhaps Wang could have written that Blackman only discussed the problem of judges taking senior status now that a Democrat is in the White House, which creates the inference that there is some sort of new behavior. But to make a statement like that, Wang would have to be certain that I've never written about strategic senior status-taking 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. I named names. (And a few of the people I named were not very happy with me; welcome to my world.) And many of the judges I named did in fact take senior status when they were eligible. I wrote:

According to my calculations, there are over 100 judges appointed by Presidents Ronald Reagan, George H. W. Bush, and George W. Bush who can immediately open up new vacancies by announcing a plan to leave active service, either upon the confirmation of their successor or on a future date. They should be encouraged to do so over the next year.

Wang should have cited my National Review piece as support for this thesis! We agree!

Here, we have a failure of the author to accurately cite a source, and the failure of the editors to check sources. Moreover, it is all too common for authors to tease student editors with lofty claims like "I challenge conventional wisdom" or "I proved so-and-so-wrong." The latter claim is especially attractive when the author shows that conservatives are worse than liberals, or even worse, a conservative author is a hypocrite. (That's me.). The journal was snookered here.

I emailed both Wang and the journal. They replied there would be no correction. So this blog post will serve as the rejoinder.

May I offer some advice to 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 at length. Quote the exact point that you are saying was wrong. And once you've done that, stop short of actually saying they're wrong. Make it soft. The author may have erred when he wrote… The author failed to consider… The author did not account for… And so on. But don't write that your work "contradicts" what someone else wrote–especially when the person you are criticizing supports your work.