« Finally, some legal analysis | Main | The Trouble With Law Review When You're Short on Time »

Leiter Fantasy

It's almost silly, critiquing Brian Leiter after Professor Althouse has already given him such a thorough and well-deserved drubbing. But he's at it again.

Leiter likes to critique his online opponents--with terms like "moral cretins and self-important poseurs"--for failures of reason or reasoning. And yet on one subject, he seems to need no more proof than mere assertion, no more reason than the flimsy scrims that will satisfy his desires. That subject is the idea that President Bush is going to reinstate the draft.

I've already chronicled the absurdity of his assertion that Bush would do this through a bill entirely sponsored by Democrats. But now look at what Leiter has posted as "a good summary of the facts." A Common Dreams piece by Howard Dean, in which black is white and up is down. Dean seems to be anticipating sensible criticism and giving nonsensical replies:

President Bush will be forced to decide whether we can continue the current course in Iraq, which will clearly require the reinstatement of the draft. The Pentagon has objected to a draft but, the President has ignored other Pentagon recommendations in the past.

That's logic? The President has ignored recommendations in the past, so he'll ignore this one? True, he may ignore this one, but that's a possibility, a mere prognostication, not an argument. And given that reinstating a draft is political suicide, militarily unwise, and has no payoff for Bush at any point, it's a rather farfetched example of Deans--and Leiter's--skill at political haruspicy. Those livers must really be a mess.

(update: worth noting that Leiter doesn't quote the above. The piece he quotes, however, is similarly tenuous. Basically it states that our military is overstretched, and thus there must be a draft forthcoming. There is no discussion of other options, present solutions, or events that might change on the ground. Which of course, there wouldn't be, because it's a hit-piece designed to impress a certain conclusion upon the reader, not a 'summary of the facts.')

I will never understand Leiter's ability to hold a readership based upon articles and arguments like this. It's tempting to just challenge him to put his money where his mouth is, to lay a bet on Bush starting up the draft in 2005. After all, Leiter obviously believes this to be so true he can support it with arguments that border upon the fatuous. Wonder what I'd have to offer to get him to wager his blog?
(A response to Leiter's comeback is in the extended entry.)

Update: Leiter responds here. And what a response:

(A sidenote on naifs: this one--a law review student, it appears, named Anthony Rickey at Columbia--purports to take issue with this posting of mine, yet neither disputes nor responds to any of the factual claims in that posting, instead quoting something else, which he denounces as silly, before noting, parenthetically, that I had not quoted it! This can not be a quality of argumentation that makes my friends on the Columbia Law School faculty proud. Another one, alas, for the annals of the decidedly weird. [By the way, on the basis of this robust argumentation, he thinks that I and, by implication, you dear readers are "schmucks." Goodness!)

(links in original omitted)
Let's take this one at a time:
  • He's right. I didn't take issue with the factual statements he quoted, because taken alone they don't come up with reasonable support that a draft is coming. Take the Individual Ready Reserve statement: it's ably handled by the Clerk, who manages as always to put things in reasonable perspective. The facts listed by Leiter give reasons why forces are stretched, which is to be expected when two wars are running, but not reason to anticipate a draft--certainly not in Leiter's strongly conclusive way. As Leiter puts it in his most recent post on the topic: "And unless the course is changed, the writing is on the wall for the next generation of victims." I hereby revise my commentary: he's not bad at haruspicy but cephalonomancy.
  • Leiter states that I quoted "something else." That something else is the rest of the article to which he linked in the original post. It's a sentiment with which he most heartily concurs in his current post on the draft (linked above). Indeed, his statement is stronger than Dean's and suffers the same defect. So if my argument is bad, it's in assuming that he agrees with his source material when he gives no indication otherwise, an assumption which he confirms in a later post. I hesitate to again mention haruspicy....
  • Finally, let me make something clear to any of Prof. Leiter's readers who have wandered this way: Leiter has made his reputation as a pugnacious fellow who feels little need for civility in the blogosphere, has no problem calling his opponents cretins, and in general has no problem with dubious language, so long as he's the one using it. His concern about the use of the term "schmuck" is thus a bit puzzling.

    Doubly puzzling is his determination that I mean anything towards his readers. I have no idea who his readership is: I know only what he himself writes, although he quotes his correspondents sometimes. But if his readers doubt the accuracy of this statement, there's an email that Prof. Leiter sent me last Friday. Might I suggest that you, his readers, ask his permission for me to publish it? Suffice it to say it is singular in all my experience on the internet and a pretty good testament of character. For some reason he doesn't wish me to print it.

    Nonetheless, and irrespective of the Professor's rhetorical excesses, the term was probably a bridge too far. In what mild defense I can muster, I'll say only that I was echoing the usage of another reader, and didn't mean the term in earnest. One of my greatest objections to Prof. Leiter is his practice of demonizing his opponents: "The Texas Taliban," "the madmen in the Bush Administration," etc. I shouldn't have joined in that part of the fray. For that I apologize both to the Professor--to the extent they care--his readership.


Listed below are links to weblogs that reference Leiter Fantasy:

» Continuing the Argument from Half the Sins of Mankind
Tony Rickey thinks that all concerns that President Bush will attempt to institute a draft after the election are utterly ridiculous. [Read More]


given that reinstating a draft is political suicide, militarily unwise, and has no payoff for Bush at any point I don't have the patience to read Leiter/ Dean, but presumably they've mentioned that after winning a second term, Bush has no reason to care whether a particular act is "political suicide." I doubt that he's planning to have a post-White House career in politics (probably not following Taft to SCOTUS). The military wisdom of a draft, I can't comment upon; it worked for the greatest generation ;-) The payoff for Bush: if we thought Clinton was legacy-obsessed (and left office without one), how much is Bush going to be concerned about whether he has lived up to the greatest challenge since Pearl Harbor? Iraq is Bush's. He can blather about the international coalition, we can note the bipartisan Congressional votes, but this is Bush's project. If he sincerely thought that a draft would make his project a success, why wouldn't he institute one? I don't think that Iraq was a decision made based on "how do I win an election" calculations. I think it came from the gut more than that; to give Bush whatever credit this entails, I think he sincerely believed regime change in Iraq was the right thing to do. If LBJ actually had succeeded in Vietnam (which I think was inherently impossible, but anyway), we would be thinking of the draft as an unfortunate, controversial but ultimately necessary aspect of that success. I don't think Bush perceives the draft as necessary to the Iraq project, so Leiter and Dean are being alarmist. But don't assume that Bush would feel internally blocked by the notion of a draft if he did think it the difference between a democratic, capitalistic, pro-American Iraq and a Mess o' Potamia.
I don't have the patience to read Leiter/ Dean, but presumably they've mentioned that after winning a second term, Bush has no reason to care whether a particular act is "political suicide." First, PG, even second-term presidents have reasons to care about political suicide... or, to be a bit more explicit, fratricide. Most Presidents would like to see themselves succeeded by a member of their own party, which is bloody unlikely after a draft. Secondly, Presidents like to get their domestic agendas, and indeed the rest of their agendas, passed, and a draft will get in the way of that. Just because a President is re-elected doesn't mean that political calculations go out the window...
I gotta say, I think you're stressing this Leiter guy too much. You say he gets read, which I'll take your word for, as I've never heard of him before. But, uh, are you sure you're not getting a little Captain Ahab here? Let's just rattle off a few things at first: 1) Iraq is a big operation that, to put it conservatively, did not turn out to require a military presence that was merely negligible. 2) Those who want to argue for a greater troop commitment in Iraq have at least several credible military analysts to quote in support of their position. 3) It's pretty well known that enlisting can lead to a quick flight to Fallujah. 4) The civilian commander clearly thinks Iraq is a job worth doing. I mean, is it really absurd to say that the draft is a definite possibility? This is _not_ to defend all the nonsense that often accompanies that viewpoint, such as the dismaying refusal to believe that the most prominent legislative proponent of returning to the draft is, in fact, a Democrat. But on the specific issue of whether it's an inadmissible argument, I wonder. Isn't this such a situation where one would normally be suspicious of his initial gut reaction, especially considering the source is Leiter? Is the draft coming back? Without question, no one outside the administration can speak with any certainty on this, and outside the extremely unlikely scenario of a secret plan already being in place at the Pentagon, nor can anyone inside. But does that uncertainty make it beneath comment? Gov. Dean's argument probably makes a more robust case than is warranted, but the trends visible now do make it more likely, as a matter of odds and probabilities, that the draft will be reinstated than would be the case if the US were not involved in the Iraqi theater. Think the evidence standard for relevancy. I mean, yes: It _is_ "prognostication." But that doesn't make it "not an argument." If I object to tax cuts and spending increases because it will increase future deficits, isn't that the same general argument, that I object to the proposal for the reason that it will make more likely a future outcome I find undesirable? And Bush's disregard of Pentagon advice is hardly irrelevant, when one of the counter-arguments is likely to be that the military brass will counsel against the draft. So I'm confused, whence and wherefore the strident reaction? Is it just because you don't like Leiter? Again, I don't know him, and he very well might be a schmuck. But, ah, there are a lot of schmucks on the web; it won't do to obsess over all of them. TtP
TtP: First, Leiter is a schmuck who is 'very well-regarded' in his own sort of way. In his defense, within his fields he's either presumably good (I can't judge him on philosophy) or quite lucid (I can sympathize with his arguments about law school rankings). But he's also big on the "man and superman" schtick, so factor that into the analysis. But as for obsessing: he's been around longer than I, and his audience is larger. When he posted that original piece of claptrap on the draft, he was requoting it, but it began showing up throughout the liberal blawgosphere. When he talks, people listen, which is why it's worth pointing it out when he's talking out his ass. With regards to why Dean's statement is not an argument: it requires some assertion that although Bush may have disagreed with the Pentagon in the past, he would also disagree on this point in the future. Dean doesn't bother with this. Please don't get me wrong. The possibility of a draft is certainly worth comment, and should be commented upon. But neither Leiter nor Dean are speaking as if they want commentary or discussion. Dean finishes his article with a "Have you stopped beating your wife yet?" question: he asks if we're pulling out of Iraq or starting a draft. As I'm sure you'll concede, there are many other options. For one, we currently have an English language requirement that keeps a lot of otherwise qualified folks out of the military: this could be modified. We could turn this into an opportunity to let gays into the military. We could raise military pay. There are all sorts of options available outside of Dean's false dichotomy. And yet Dean 'demands' a very specific answer to question. Leiter on the draft is worse. It's a hidden plan, a secret conspiracy--known only to the left--in which Democratic bills are going to be revived in order to put this in place. The fact of a coming draft is self-evident in the eyes of this superman, and no mere fact, let alone a presidential assertion, will dissuade him. Anyway, Tony, I take Leiter seriously enough to respond to him because others take him seriously enough to believe. I try to keep my 'obsessions' to a minimum, however. ;)
Tony, Nice reply above. I would add my own two cents here: Leiter, and the rest of the non-pacifist liberals (Leiter claims he's not a pacifist) have some serious 'splaining to do here. As I understand Moore's silly film highlights, our volunteer army is not very progressive as a social policy. It means that wealthy or educated folk for the most part get a total pass on military service, while the poorer, less educated (and disproportionately minorities) end up in the army. That's why it was Democrats who wanted to bring back the draft--to make the service more of a collective effort. Note that this would also, presumably, make the nation as a whole more hesitant to go to war, something Leiter should presumably like. But since he's most intent on slurring all people who disagree with him, the only "interesting" thought he can muster about a draft is that it's one more reason to be scared of the "fascists" in the White House. Meanwhile, Bush is prematurely forced by Kerry to say "no draft, never" when both of them should be forced by the right and the left to explain why having no draft is either moral or responsible. Fr. Bill
Anthony-- I apologize for the shameless self-promotion, but you might enjoy The Brian Leiter Drinking Game. http://www.moteworthy.com/archives/000500.html D.Q.
Perhaps it's a matter of whether Bush agrees with the Pentagon or "a Pentagon-appointed panel of outside experts," as the latter thinks that our current forces are insufficient. Fr. Bill makes a really excellent point. Note that this would also, presumably, make the nation as a whole more hesitant to go to war, something Leiter should presumably like. I think the idea, perhaps poorly articulated, is that a war requiring a draft had better be a damn good war, one that is so necessary to the United States's survival (Civil War, World War II) that it overcomes our natural dislike of forcing people to abandon their life plans to go to war. Liberals don't mind having the non-elite in the military -- good place for job training and all that. What bothers us is having the non-elite have to bear most of the burden of wars pontificated upon by the elite. Drafts force nations to think even more seriously than one hopes they already are doing about where their priorities are, what sacrifices they are willing to make, and how to share burdens more equally.
PG & Fr Bill: The draft didn't cause any deep thinking before this country plunged into the Vietnam War. It did not cause equality of sacrifice - the wealthy and well-connected had all the options: --A hundred ways of dodging it (Clinton, Bush, Cheney) --Join up and get a job where they were unlikely to ever see a shot fired in anger, even in 'Nam (Gore) --If looking to future political advantage could even join a real combat unit, hotdog it through a few not too dangerous incidents, and use their influence to pile up the medals and go home early. (Who was that, again?)
Markm, There is not doubt that a country with a draft might still be too readily whipped into war frenzy. And perhaps it is possible, as well, that the advantages of wealth can never be overcome by tighter rules of participation. Nevertheless, it is hard to see how our current system doesn't make it even easier for us to go to war, and even less likely to worry about the price. So, while your points as to the past are well taken, it doesn't follow that our current policy is in any way an improvement on that. Fr. Bill
Vietnam, despite its appeal to some as the best point of comparison, was approached very differently than Iraq has been. It's been called America's Longest War because full involvement and withdrawal both happened so gradually. Historians may end up categorizing the Persian Gulf Wars of Bush I and Bush II as essentially one conflict, with a "cool" period during which we bombed and starved the Iraqis without engaging in ground operations. But seen separately, each "hot" war had a distinct mission; first to end the invasion of Kuwait, second to overthrow Saddam Hussein's regime. In this clarity, WWII actually is a better comparison, even if the analogy does require taking Bush's claims about Iraq's connection to 9/11 (our Pearl Harbor) and its ability to threaten the U.S. as fact rather than fiction. My understanding of the WWII draft is that it was quite successful; people like Bush Sr. and JFK served regardless of socioeconomic background. So I don't think one can claim that the wealthy always can or do get around the draft. A young man who was not in the military after Pearl Harbor was regarded as a slacker; there does not appear to have been a similar contempt for those who evaded the Vietnam draft successfully. Indeed, some veterans were discriminated against for having served. Perhaps our attitude toward those who dodge the draft for a particular conflict is some indication of how we regard the conflict itself.
So what's stopping you from reprinting Leiter's email? Who says you need his express permission?
Technically, I don't. But he emailed it with an expectation of privacy--wholly his own, but apparently his idea of a universal blogospheric norm. Until he gives me permission, I figure it reasonable not to reprint it.
Nonsense: The universal norm is that emails are fair game for quotation. Why protect a bully?
Because in fairness to him, I don't think there's a 'universal' norm either way: it's mostly a matter of habit, and differs depending on the sites one visits.
Hm. Perhaps I'm still a little unclear. Is it your objection that Dean relies upon a necessary assumption that Bush would ignore Pentagon advice again in the future, but does not spell as much out loud? Because it still seems to me that the content of the governor's piece is restricted to the proposition that the Pentagon's opposition to a military move, by itself, is clearly insufficient to dissuade Bush from that move---which is patently obvious. "We ought to be afraid of the draft coming back. It is no answer to say that military experts would think it unwise; George Bush has ignored the better judgment of military experts in the past, and he can do so again"---that sort of thing. As for the objection to his rhetorical framing, it's fine as far as it goes, but contemporary politics hasn't been bound by the strictures of logic for a long time now. Not that I think it's illegitimate---if the most effective way of making your point (say, that new spending is irresponsible) is to present a false choice between the two most comprehensible or likely scenarios (scenaria? scenariot?), I don't see any reason to refrain from that option ("If you pay for prescription drugs, Senator, you're going to have to raise taxes or grow the deficit---which one is it?") out of a scrupulous adherence to a logic system that won't be contemplated by the majority of your audience. Interlude for Fr. Bill: If not having a draft has been, if not perfectly Rousseauean and moral, at least responsible since the end of Vietnam, it has been because there hasn't been since then a real need for a large-scale commitment of troops into harm's way. Military interventions since 1975 have been soldier-cheap; therefore the laissez-faire solution of letting those that wanna be soldiers, be soldiers, has been the best way of respecting individual choice, in a context where duty and shared sacrifice were largely empty notions. What Dean and the rest are saying (I'm sorry, I'm still not paying attention to Leiter---unless it's Al Leiter), it seems to me, is that the post-Vietnam situation no longer exists, because our military interventions have gotten quickly troop-expensive. Is the draft inevitable? No. But it seems fair to say that we now must note the loss of a happy situation where the draft was _unthinkable_ (except as the topic of an occasional debate with Charlie Rangel on the meaning of republicanism & civic duty). The practical possibility of the draft is only the beginning of the argument, and Dean does go further, of course, and his extended argument requires a factual analysis beyond my capabilities---i.e., whether the Iraq operation will, in fact, require a reinstatement of the draft to supply greater troop resources. Certainly it looks like we're spread thin there, although I don't know that that's not due to Rumsfeld's stubborn insistence on doing the whole thing with a "new" military model, with a flexible, small force, rather than a large and overwhelming one (a la Powell). Perhaps the Iraq operation is too troop-intensive a goal to be accomplished with present troop levels, and _perhaps_ the draft will be reinstated to finish the operation. Not inevitable, but only one answer. Is that so unreasonable a judgment for Dean to make as to warrant the "black-is-white" tag, though? The reason, says Dean, that the draft will become necessary is not, after all, that the Pentagon opposes it, but his (presumably) reasoned analysis of the military situation in Iraq. It just seems... too hard on the man, you know? TtP
TtP: Is it your objection that Dean relies upon a necessary assumption that Bush would ignore Pentagon advice again in the future, but does not spell as much out loud? The problem is, he needs to make the necessary assumption that Bush would ignore the Pentagon's advice in this case. The fact that Bush has ignored it before is irrelevant. For instance, I trust Fr. Bill's recommendations on restaurants. Nevertheless, were he to advise me to go to Tomo's (a restaurant near Columbia that he frequents and I dislike), I would ignore it. Now, I have "ignored Fr. Bill's advice about restaurants before." When he tells me of a very nice French restaurant downtown, is it likely that I'll ignore it? Certainly not: the mere fact that I've disagreed with him before doesn't make it likely that I'll do so again. The trouble is that arrayed against everything that Dean is saying is this evidence: The Pentagon doesn't want a draft. Bush has stated he doesn't want a draft. Rumsfeld has stated he doesn't want a draft. Indeed, the only people who are putting anything forward for a draft are Democrats with no hopes of getting a bill out of committee. Now, I'll grant you this: Bush's actions have increased the odds of there being a draft. They've increased it from 'almost entirely unlikely' to 'really quite but not entirely unlikely,' as just about any military deployment does. For Dean to pose his final question as anything but a false dicotomy (or Leiter to talk of a draft as 'coming'), you've got to raise the bar into at least the 'only slightly unlikely' area. Remember that the title of the piece is "Hidden Agenda": it at least implies a bit more intent than that. Instead, Dean makes aruments like this: Selective service boards have already been notified that 20-year-olds and medical personnel will be called up first. The only sense in which this is true is the sense explained on the SSS pages: the law was changed in 1971 to establish a lottery, prioritizing those who are 20 years old. So this is hardly shocking news. But it's phrased in such a way as to make it sound like this is 'news,' as opposed to old policy. It is 'black is white and up is down' in the sense that, by eliminating key facts he gives the impression that this is some 'hidden agenda,' rather than something he has to prove is inevitable. Sure, it's predictable politics. But Leiter claims the standards of a law professor or academic. I'd expect this from Dean, even though it's nothing more than the predictable spin of a hit-piece in a campaign season. I'd not requote it.
BTW, TtP, since you've been checking the Bluebooking on my site, you might be one of the few people who would appreciate the irony of Leiter's accusation of a lack of professionalism on my part. Take a look at his quote above, and the source in the comments. Certainly, he should have used "schmuck[s]", no? Unless he was quoting you, who didn't use the term in reference to him at all?
Hello, we are high school students at Antioch Community High School in Antioch, Il, and are doing a report on the military draft from the 1940's. We have been viewing your websiste and we would like to ask a question about the possible reinforcement of a draft. Who would be drafted? Why would they go first? Would it be comparable to the draft in the 1940's? Thank you, and we hope to hear from you soon. Nadisha Boswell, Josh Abramson, Tegan Anclade, and Aubrey Dahlem

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

And like that... he is gone (8)
Bateleur wrote: I tip my hat to you - not only for ... [more]

Law Firm Technology (5)
Len Cleavelin wrote: I find it extremely difficult to be... [more]

Post Exam Rant (9)
Tony the Pony wrote: Humbug. Allowing computers already... [more]

Symbols, Shame, and A Number of Reasons that Billy Idol is Wrong (11)
Adam wrote: Well, here's a spin on the theory o... [more]

I've Always Wanted to Say This: What Do You Want? (14)
gcr wrote: a nice cozy victorian in west phill... [more]

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students