Leiter's Notion of "Sharp Analysis"

University of Texas Law Professor Brian Leiter fancies himself a Nietzschean, which perhaps lets him off the hook for the failure to make actual arguments, at least insofar as one reads Nietsche as a misologue. But he also teaches law, which should not excuse him. He has chosen to weigh in on the Schiavo matter in a way that violates both his own principles, logic, and any standard of decency like "do not be a religious bigot."

Leiter commends his readers to read Juan Cole's post on Schiavo's case as evidence of the Republican Party's tendency toward the establishment of a theocracy. Nevermind the likelihood that a party whose Southern base is largely Southern Baptist would attempt to push my own Popish faith on the country (doesn't Leiter live in Texas?), let's look at the logic of Cole's argument. Let's also note along the way that Leiter typically likes to bash those who disagree with him for lacking professional credentials to make their arguments. Juan Cole has no credentials for the arguments he makes, save for the rough analogy he is arguing to Islamist regimes; but his total misunderstanding of the American or Catholic regimes in this case hardly permits that knowledge of the Middle East to grant him professional competence. I say this to let Prof. Cole off the hook for the silliness of his rant. But Leiter can't make recourse to that excuse, since it is his job, for which he has an endowed chair, to make legal arguments.

Here's the core of Cole's anti-religious rambling:

[T]he most frightening thing about the entire affair is that public figures like congressmen inserted themselves into the case in order to uphold religious strictures. The lawyer arguing against the husband let the cat out of the bag, as reported by the NYT: ' The lawyer, David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water. "We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul," Mr. Gibbs said. '

In other words, the United States Congress acted in part on behalf of the Roman Catholic church. Both of these public bodies interfered in the private affairs of the Schiavos, just as the fundamentalist Egyptian, Nabih El-Wahsh, tried to interfere in the marriage of Nawal El Saadawi.

In other words...no. Let us begin with the fact that Cole here quotes an argument made by Schiavo's parents' lawyer after the Congressional debate. Let us further add that the argument their lawyer made is in no way representative of Catholic theology (which would not admit of the notion that an unconscious woman could jeopardize her sould as a result of somebody else's decision). So Cole is arguing that Congress is responsible for the argument of a lawyer made as a result of their law, but in no way enabled or encouraged by it, and he is arguing that a patently silly argument theologically was advanced by Congress "on behalf of the Roman Catholic Church." Even if the argument of the lawyer were not theologically suspect, legally it would amount to a not-implausible claim that Ms. Schiavo had a free exercise right here that was being overridden by the court. I don't think it would amount to a persuasive legal argument, but it would not be facially unacceptable and it would certainly not amount to a theocratic claim. This is the worst sort of old-fashioned anti-catholic bigotry, it defies logic, and it is utterly vile. "Sharp analysis" indeed.

Surely Prof. Leiter, even if he agrees with me that this law should not have been passed, would not think that the post hoc ergo propter hoc fallacy should saddle the Congress with liability for this silly argument by Schiavo's family's lawyer. Further, he should be able (or his academic expert, Cole, should be able) to note that the argument advanced by said lawyer is in no way representative of the Catholic church or its theology.

In other words, there is zero evidence that Congress was putting itself in the service of the Catholic Church (which just this week put on a big initiative to ramp up its public, political opposition to the death penalty--was Congressman DeLay secretly pushing that agenda, too?), and zero evidence therefore that the silly law they passed this week was the beginning of a theocratic movement.

It is sad to see two academics who hold prestigious posts at excellent schools lending their names and their credentials to arguments to clearly redolent of the worst era of anti-Catholic bias in this nation. I anxiously await their retraction of this calumny.