RUTHFULLY YOURS

One of the more desperate efforts made in defense of Claudine Gay as she was toppled from her position at Harvard for plagiarism was to dredge up a failed hit from 2017 on Neil Gorsuch. During the battle over Gorsuch’s confirmation, John Bresnahan and Burgess Everett of Politico wrote that Gorsuch “copied the structure and language used by several authors and failed to cite source material in his book and an academic article.” Ed Whelan responded at the time.

Both noted that there were academic experts, including the “outside supervisors for Gorsuch’s dissertation” and “the general editor for Gorsuch’s book publisher,” who saw no issue with Gorsuch’s writings under the standards for writings on legal philosophy. To my eye, Gorsuch should nonetheless have been more careful in his citations in the examples offered by Bresnahan and Everett. Yet, even they conceded that the handful of challenged passages were “a small fraction of published works by Gorsuch, which include hundreds of legal opinions, academic articles, news articles and his book.”

Are these distinctions without differences? No. Plagiarism is generally bad, but the degree to which it is bad — and the reasons why — can vary greatly by the facts and the setting. As with many things, assessing whether it’s just a minor infraction or a serious firing offense requires judgment and standards.

Is it bad to pass off someone else’s words as your own? Generally, yes. But in some contexts, it’s the norm. Young lawyers are often asked to draft memos, briefs, and complaints. Even when there’s a certain amount of style involved, it’s encouraged to copy from somebody else’s prior work in order to save on time and costs, so long as you’re careful to make sure the research is up to date and you don’t inadvertently leave in facts from a prior setting. It’s the better practice to tell your boss — who often signs the thing before a court or client — that you used a prior precedent in drafting, but nobody gets judged for doing it whether or not they disclose that. Getting the final product done right, on time and on budget, is what matters. That’s quite a different context from journalistic writing, in which giving credit to the writer is important and people get fired for copying the work of others.

Or consider other realms of professional life. Politicians deliver speeches penned by speechwriters and publish books written by ghostwriters. Newscasters read scripts written by others. Judges publish opinions written by clerks. In those settings, the person who’s out front bears responsibility for the accuracy and tone of the message, but it’s just universally understood that somebody else may have done a lot of the work. Judicial opinions even sometimes just copy things from the briefs or closely paraphrase prior opinions without citation; in a field that prioritizes precedent over originality, that is not a sin.

Even within those contexts, a politician can get in trouble for plagiarism or its close cousins in speeches and books. Many regarded John F. Kennedy and Barack Obama, for example, as underqualified lightweights when they ran for president. JFK’s best defense against this was his celebrated authorship of the Pulitzer Prize–winning 1956 history book Profiles in Courage. Obama leaned similarly upon the highbrow reputation of his 1995 book Dreams From My Father and upon the quality of his speeches. It turned out — as was speculated in some quarters at the time — that Profiles in Courage was written mainly by Kennedy speechwriter Ted Sorenson. It would have been damaging to JFK if it had become known before the 1960 election that he hadn’t written the book. Obama’s 2008 campaign was similarly prickly about suggestions that he wasn’t the real author of Dreams From My Father, and the campaign went out of its way to paint Obama as the author of well-received speeches that were really drafted by Jon Favreau and other Obama speechwriters.

Plagiarism is what wrecked Joe Biden’s 1988 presidential campaign. Was that really different from Obama lifting rhetoric from Deval Patrick, or Melania Trump stealing from Michelle Obama, or Ronald Reagan stealing old jokes, or even Benjamin Disraeli copying portions of his eulogy for the Duke of Wellington from a French politician’s homage to one of Napoleon’s marshals? Some of it wasn’t: Biden or his speechwriters stole lines from JFK, Bobby Kennedy, and Hubert Humphrey, and those cumulative examples helped sink him, but they would not have done so on their own.

What sank Biden was that he stole another man’s life stories and passed them off as his own. And make no mistake, there was no question that it was Biden himself (not a speechwriter) who watched videos of British Labour MP and Thatcher foe Neil Kinnock’s speeches and not only stole his biography but also imitated his cadences and mannerisms.

Academia is different. For students, the whole point is to demonstrate the capacity to do your own work — that’s why Biden, again, failed a class and was almost expelled from law school for copying a law-review article for a Legal Methods class. For graduate-level work and advancement within academe, it’s a make-or-break thing to show that you can contribute something to the field of your own. So, if what you present as new and original is neither, that’s a serious problem. And, of course, the volume of plagiarism is a major factor in how grave an offense it is.

Gay had all of those problems put together: a large number of incidents of plagiarism within a comparatively small and intellectually shallow body of academic work, an offense that robbed other people in her field of the credit that goes with citation. Making matters worse was the fact that Gay was the face of a university that was and is supposed to maintain standards against plagiarism.

The contrast with Gay’s case shows why the charges against Gorsuch never got anywhere at the time. The major evidence involved Gorsuch closely paraphrasing technical scientific descriptions in a work on the law and philosophy of how to handle those scientific issues. Had Gorsuch been seeking an academic position in the sciences, this might well have been a serious problem. But it was all just background from another field for the actual substance of his work. As the supposed victim of his paraphrases wrote, “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.”

Some similar descriptions of the facts and procedural steps of prior cases might be a knock on Gorsuch if he was (like Biden) a first-year law student trying to prove his competence at the law, but a veteran jurist with a sterling record in legal practice has plenty of independent proof of that. Gorsuch is too distinctive and incisive a voice as a writer and legal thinker to fake it.

Gay’s defenders, herself included, have been busy building a victim narrative that buries the actual facts of her case and requires a bunch of false parallels in order to appear viable. They will probably succeed; the academic Left is nothing if not more devoted than its critics to rewriting history. But nobody who actually cares about applying judgment to these situations would compare Neil Gorsuch to her.