Today headlines screamed—do mark the journalists and news organizations, for they exemplify Prof. Glenn Reynold’s jibe, “Democratic operatives with bylines”—that Supreme Court nominee Neil Gorsuch had committed plagiarism in four passages of his 2006 book “The Future of Assisted Suicide and Euthanasia,” which was based on his 2004 Oxford dissertation, before he became a judge.
That’s a stretch, and more than that, making this a major new story now indicates bias.
In the most egregious of the passages cited, Gorsuch included a description of the famous “Infant Doe” case that tracks closely with the description in a 1984 law-review article by Abigail Lawlis Kuzma. Both versions primarily quote from the court opinion: Kuzma’s article tracks equally closely to the original opinion, a 1982 Indiana court ruling that was later sealed, a pediatrics textbook, “Rudolph’s Pediatrics,” and a 1983 article in the Bloomington Sunday Herald. Gorsuch cited all of these, but did not cite Kuzma’s article.
He should have. That’s a citation error, but probably not plagiarism. Several the sentences in the book and the article are identical or close to it, and Gorsuch should have used quotation marks. However none of the sentences involved anything but factual and technical descriptions. For example,the article states that “Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus,” and Gorsuch wrote, “Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.”
Now, if I were writing about esophageal atresia, about which I know nothing, in the course of an analysis of a larger issue, I would probably re-phrase that passage, perhaps writing, “When the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus, this is the condition called esophageal atresia with tracheoesophageal fistula.” I haven’t added anything original, though. There are no new thoughts or content. My re-phrasing would just dodge the accusation of plagiarism. When I wrote my thesis, which involved reviewing multiple biographies of every U.S. President, it was not uncommon for me to find paragraphs in the earliest materials that were worked over and re-phrased again and again, with no quotes but citations.
The National Review, a conservative publication, so its position will be discounted as biased and partisan, tracked down Kuzma, who waved off the plagiarism charges:
“These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the “Baby/Infant Doe” case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.”
Weeell, that’s laying it on a bit thick. Gorsuch certainly could have done a more academically acceptable job of re-stating the substance of what she wrote; it’s not THAT “awkward and difficult.”
Georgetown University Law Center professor John Keown, who was one of the outside examiners of Gorsuch’s Oxford dissertation, called the allegations of plagiarism “unsubstantiated” and praises the book as “meticulous in its citation of primary sources,” adding that “The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is very wide of the mark.” The National Review also quotes Dr. Chris Mammen, a fellow student of Gorsuch’s at Oxford, who said that the “standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.” Oxford professor emeritus John Finnis supervised Gorsuch’s dissertation. After reviewing the recent charges, he concluded that “none of the allegations has any substance or justification” and that Gorsuch’s “writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he was working.”
Again, that seems excessively generous. The passage about the Baby Doe case that Gorsuch obviously substantially duplicated from the law review article was more than 350 words long. Yes, the original author substantially cut and pasted it from three primary sources, and Gorsuch cited them, but I would not be surprised to see a student that did what Goruch did be accused of plagiarism, or at least sloppy scholarship. This is the gray area of plagiarism, especially now, in the age of the internet. Many authorities do not regard it as plagiarism when a repeated sentence or largely duplicated passage doesn’t involve misappropriation of anyone’s ideas, theories, or creative expressions. (I just used “misappropriation of anyone’s ideas, theories, or creative expressions” from Ed Whelan’s article about the incident. Am I obligated to credit Ed? Opinions differ.)
Oxford’s academic guidance for plagiarism would, strictly interpreted, suggest plagiarism. “Paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using,” it says.
New York University law professor Christopher Sprigman is building an online standard for citation in legal scholarship. In response to Politico’s inquiry, he said he did not believe the passages in Gorsuch’s book reflected “mendacious” acts on the judge’s part, saying that Gorsuch’s rephrasing and choices in attributing sources were practices “you might agree with or disagree with…It’s a little bit risky, but I wouldn’t say it rises to the level of a bad act. I think some people would say it’s sloppy.”
The fact is that this academic practices dispute involving a 13-year-old dissertation and a 33-year-old law review article has nothing to do with Gorsuch’s qualifications as a judge. At least when Democrats were trying to smear Clarence Thomas in a last-ditch, 11th hour attack, they found a complicit partisan foe with a grudge who alleged a violation of sexual harassment law (though it wasn’t one when it allegedly occurred.). Gorsuch’s poor citation practices and border-line plagiarism might be a problem if he were being considered for president of a university (though maybe not Harvard Law School, where at least two prominent faculty stars were caught engaging in serious, way over-the border plagiarism), but it’s an irrelevant episode to his Supreme Court credentials.
UPDATE: I haven’t yet checked what law professor/blogger Ann Althouse has written on this controversy; she’s my favorite non-ideological contrarian objective analysist. Let’s see…
The words in question are stating the facts of a legal case — medical details. I have a feeling lawyers, law professors, and judges take shortcuts lifting this sort of detail from legal cases and briefs all the time. We’re not seeing Gorsuch lifting any distinctive ideas from the author and not giving her credit. It’s material about, for example, what “esophageal atresia with tracheosophageal fistula” means, and Gorsuch, like the other author, cited a 1982 Indiana court ruling — which we can’t look at now because it’s sealed — a pediatrics textbook titled “Rudolph’s Pediatrics,” and an article that appeared in the Bloomington Sunday Herald in 1983.
Should I have put the words after “cited” in quotes? I copied and pasted “A 1982 Indiana court ruling that was later sealed, a well-known pediatrics textbook, ‘Rudolph’s Pediatrics,’ and a 1983 article in the Bloomington Sunday Herald.” And I changed the words a little.
Yeah, that’s about what I expected.
UPDATE: LawNewz reaches a similar conclusion.
Sources: National Review, Politico, Fox News, BuzzFeed, Washington Post, Bloomberg, New York Magazine, Occupy Democrats, The Daily Caller, The Atlantic, Washington Free Beacon, New York Daily News, Talking Points Memo, New York Times, TheBlaze, ThinkProgress, Mediaite, NBC News, Lawyers, Business Insider
22 thoughts on “How Do We Know The Democrats Can’t Find Any Ethical Reason Not To Confirm Judge Gorsuch? Because They Searched And Searched, And The Best They Could Come Up With Was THIS [UPDATED]”
So who paid whom to comb through the judge’s bibliography and find this passage? Who did the work? A bevy of associates at a megafirm? Very strange.
Probably, or a whole bunch of unpaid interns at a liberal paper. The fact is the Democrats and the left don’t want Gorsuch seated, and what’s more, they want to pick the nominee, if you listen to Schumer’s latest nonsense about “don’t change the rules, change the nominee.” They are willing to take desperate measures to achieve it.
Perhaps we should change the Senate and neither the rules nor the nominee.
They are behaving like children.
Too late. Ka-boom! The filibuster is no more. Ginsburg should have retired when she had the chance, because if she takes the dirt nap on Trump’s watch…
Was thinking that. An awful lot of oil was burned to come up with this. It amazes me that they weren’t embarrassed to serve this up.
If they haven’t been embarassed by their conduct over the past five months, nothing will embarrass them.
BREAKING: We’ve got Trump tax returns. Tonight, 9pm ET. MSNBC.
I disagree. In my world, this is plagiarism of an order that would be unacceptable in a college freshman. A sentence of two bearing considerable resemblance to an original source is fine in a factual description. But over a full page of typewritten text, listing points in exactly the same order with almost exactly the same words–I’d charge a student with plagiarism for lifting that much from, say, a biography of a playwright. Maybe the standards are different (lower) for judges than for 18-year-olds, But where I come from, this is evidence of laziness and/or dishonesty: not necessarily the latter, but certainly one or the other.
And isn’t Ann Althouse’s defense–“I have a feeling lawyers, law professors, and judges take shortcuts lifting this sort of detail from legal cases and briefs all the time.”–just a variation on the “everyone does it” mantra you normally abhor?
Yes, I caught that, and it is “everybody does it.” That defense is absurd when used, as it was, by Larry Tribe when he literally copied almost a whole book. What she means is that in law, where lawyers routinely borrow from each other, sign briefs written by associates, have legal opinions written by clerks, and use language from cases and textbooks routinely, it’s a different culture. And it is.And his upcoming job is in that culture, not academia.
Gorsuch had been in a law firm: that kind of lifting is literally not unethcal in that context. I think this is what the commenter who said he thought the omission of proper attribution wasn’t “mendacious.”
I agree that the standards should be strictly applied to students, who need to learn what is proper.
I wonder however, if after the original author penning:
“Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.”
And a Gorsuch who had listened to you deciding to write:
“When the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus, this is the condition called esophageal atresia with tracheoesophageal fistula.”
What’s left? When describing a very jargon heavy medical condition, there’s only so many ways to mix the words up before someone invariably uses the same language, perhaps inadvertently. Especially in a case like this… It’s possible that it didn’t take 1000 monkeys the 1000 years to rewrite Shakespeare. Is there even the slightest chance that this was inadvrertent?
I have never seen the point of quoting a secondary source when you could (and should) quote the primary one. Once when I was in grad school I was working on a paper and I came across this quote I thought would work well in my paper. It turns out, he was quoting John Calvin. So I looked it up in Calvin’s book and found out the author misquoted him to the point I wasn’t sure the quote was useful anymore. I ended up leaving it out and wrote the author telling him of the misquote. Never heard a word from him, but I always assumed it was the work of some intern. Since then I decided to only use secondary sources if I couldn’t find the primary (or it wasn’t in my language).
I don’t know if it’s irrelevant — if I were Gorsuch, I’d be embarrassed by it. The real question is, “is it disqualifying, or does it cast serious doubt on the honesty and/or integrity of the nominee?”
My answer must be no, and it would be the same if it were Ruth Bader Ginsberg awaiting confirmation.
The Notorious RBG? Criticized for anything? Hah!
Not materiel to the nomination, just chaff in the air to give them talking points (past wrongs must be righted!) in an election year.
Republicans might do the same in the circumstances, but they do not own the media. Most politicians in Congress are contemptible these days.
Misuse the filibuster and the filibuster goes away. This is why we can’t have nice things. The filibuster is not supposed to prevent an up/down vote of a qualified judge that is reasonable and clearly not extreme or insane. Oh well. Perhaps without the filibuster in the future, things will just go more smoothly in general. (probably not since it’ll still be present for legislation…until the rules get changed…again.)
Who knows, Tim, maybe the GOP will get a super majority in the Senate? Who ever thought people would get angry enough to elect a Donald Trump?
I hope so. I think it’s warranted. It’s one thing to see someone get kicked and then rave like batshit crazy lunatics. It’s quite another to see them then get kicked while they’re down. When you get kicked while you’re down, you then start to question if your approach is actually working if you can’t even get the minority sympathy vote.
*minority = underdog
I blame “Mr. Smith Goes To Washington.” The filibuster 1) isn’t in the Constitution 2) makes no sense, and never did 3) has not had as beneficial a role in our lawmaking as the romanticizers seem to think. Let’s see…here were some notable ones. I don’t like all these bills, but I see no reason why NOT LAW is preferable to LAW when the majority favors the latter:
1. American Jobs Act. In the minority, Republicans still shut down President Obama’s 2011 jobs plan. It would have imposed a 5.6-percent tax on all income over $1 million to pay for new “stimulus” spending by the government. The Democrats’ majority couldn’t pass the measure, which failed 50-49.
2. Buffett Rule. Championed by Senate Democrats and the White House in 2012, the “Buffett Rule” sought to levy a minimum 30 percent tax on wealthier Americans. Forty-five Republicans voted not to end debate, keeping the legislation from the floor and from becoming law.
3. Cap and Trade. Democrats controlled both houses of Congress in 2010, but their “cap-and-trade” legislation stalled in the Senate. Republicans filibustered sweeping restrictions on the use of fossil fuels aimed at cutting carbon emissions and the measure failed to reach Obama’s desk
4. DREAM Act. Cheered by President Obama and passed by the House, the DREAM Act was on its way to becoming law in 2010. The legislation would have blazed a path to citizenship for millions of children brought here by illegal immigrants. But a filibuster-wielding Republican minority delayed a final vote, killing the bill.
5. Card Check. The 2009 “card check” bill would have made it easier for labor unions to organize and stay in power by making union elections by secret ballot obsolete. Instead, employers would be forced to recognize a union once organizers collected a majority of employee signatures. After the Republican minority threatened to filibuster, Democrats scrapped the proposal.
6. Emergency Senior Citizens Relief Act. Elder Americans would have collected an extra $250 in tax credits under the cost of living adjustment in Social Security, or COLA. A Republican filibuster took the fizz out of the proposal and the bill failed, 53 to 45.
7. Gun Control. The gun control legislation sponsored by Sens. Joe Manchin, D-W.Va., and Pat Toomey, R-Pa., backfired in the Senate after Republicans filibustered the measure. The bipartisan bill would have significantly expanded background checks in gun sales but fell shy of the 60-vote threshold to end debate, receiving only 54 votes.
8. Immigration Reform. Toward the end of his term, President George W. Bush pushed for a complete overhaul of the nation’s immigration system in 2007. The measure would have bolstered border security but granted citizenship to millions of illegal immigrants. Republican senators jumped ship and a motion to end debate failed, 53 to 46.
9. Minimum Wage. Republicans launched a filibuster in 2014 to derail a Democrat proposal that would have mandated an across-the-board federal minimum wage of $10.10.
10. The “Public Option.” Sen. Joe Lieberman, I-Conn., joined Republicans threatening to filibuster Majority Leader Harry Reid’s health care bill in 2009. The proposed legislation included a “public option” akin to Medicare but was defeated before it could come to a vote.
11. Prolonging Bush Tax Cuts. In 2010, Senate Democrats tried twice to extend George W. Bush’s tax cuts only to middle-class Americans. Higher tax brackets would have returned to Clinton-era rates under their plan. Republican filibusters slammed the door on anything short of across-the-board cuts.
12. Paycheck Fairness Act. Republicans blocked the 2014 Paycheck Fairness Act four separate times. The bill would have leveled harsher penalties for discrimination and required employers to account for any pay gap between male and female employees. The bill never made it to a final vote, though, failing 52 to 40.
This list is gold.
Forgot the source: http://dailysignal.com/2015/11/11/12-bills-that-the-filibuster-stopped-from-becoming-law/
Yikes. Makes me think getting rid of the filibuster for legislation may not be a very good idea.