The Audition Trap
When I write something controversial, I expect blowback. My recent posts about Justice Barrett were no exception. I received the usual smattering of criticisms, telling me that I have no business being a law professor and that I am an embarrassment. Another burner email account urged me to kill myself by swallowing cyanide. But one charge, though predictable, was especially misguided: that I write what I write as part of some “audition” for some other position.
This charge is not limited to me. For example, after Judge Ho’s interview with me about birthright citizenship and invasion, there was a torrent of press about how Judge Ho was reversing his position as part of an audition for the Supreme Court. The headlines followed the same template: Judge James Ho Kicks Off The Auditions For Trump’s Next Supreme Court Pick; Judge James Ho Uses Fifth Circuit Decision To Audition For Supreme Court. Again; James Ho’s Post-Election Remarks Fuel Supreme Court Speculation; This Is What Happens When Judges Audition for Trump’s Supreme Court; and so on.
There are several problems with the “audition” charge.
First, the “audition” claim primarily works to resolve some cognitive dissonance. I would like to think that even the most vigorous critics would acknowledge that I, and Judge Ho, have some intellectual acumen. We aren’t idiots. In other words, the things that we write are not based on poor analytical reasoning or lack of legal rigor. Rather, the critics charge that we write what we write in spite of our intelligence. They can’t possibly agree with what they write. In other words, because no intelligent person could possibly believe what Ho and Blackman think, they could only reach that conclusion for ulterior motives–namely, an audition. At bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office. Thus, the “audition” cl
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