The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Two Cheers for "What About …?"
People often condemn "whataboutism": "responding to an accusation or difficult question by making a counteraccusation or raising a different issue." And there's much to that condemnation is some situations. If my favorite politician Walter is exposed for having taken bribes, and my response is, "What about the politician Christopher on the other side who also took bribes?," the answer is that it doesn't matter: My guy Walter is still corrupt. Even if the argument exposes the media for covering one politician's bribetaking more than the others (or exposes others for their hypocrisy), Walter nonetheless remains corrupt.
But that makes particular sense when the accusation really is of clear misbehavior. Let's say the underlying question is quite contested: Say, for instance, that Judge Walter is faulted because the judge's spouse is involved in controversial politics, or because the judge was hobnobbing with politicians, or because the judge spoke to an ideological group. That's not against any clear defined rule: The Code of Conduct for federal judges, for instance, forbids "political activity" by judges, but doesn't define the term (other than prohibiting some specific kinds of such activity), and has an exception for various "law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities," so long as they do not "detract from the dignity of the judge's office, interfere with the performance of the judge's official duties, reflect adversely on the judge's impartiality, lead to frequent disqualification, or violate [certain particular] limitations."
The question then might be how one interprets these vague terms, or what broader ethical or legal principles one thinks apply here, or what institutional norms may have developed that elaborate on the formal rules. And there it makes sense to ask: How would the critics react when judges from (to oversimplify) their own side of the aisle, say Judge Christopher, behave similarly? If they wouldn't or didn't see any problem with that, that might mean that actually the rules or principles don't clearly condemn what Judge Walter did. Likewise, it might mean that the supposed institutional norm hasn't really been recognized.
In either event, asking "What about what Judge Christopher did?" might lead us to reasonably conclude that Judge Walter's behavior was fine. To be sure, perhaps we might conclude that Judge Christopher's behavior was also bad (even if people didn't notice it at the time) and Judge Walter's behavior was therefore bad, too. Or we might conclude that the behaviors are actually quite different, and should be treated differently. Or we might conclude that we shouldn't fault Judge Walter or Judge Christopher personally, but that on reflection we should establish norms or rules going forward forbidding such behavior. But in any event, bringing up the "counteraccusation" would be helpful.
And this is so because of an obvious feature of human nature: When people are asked to apply vague standards, they routinely interpret them more harshly against their adversaries than against their friends. The best way of checking that tendency is to think about how the standard applies to both. If the reaction of those who like Judge Christopher is "Judge Christopher did nothing wrong," then maybe their initial reaction criticizing Judge Walter stemmed from their disapproval of Walter on other matters, and not from a fair application of the asserted principle or norm.
Of course, maybe their bias is in their endorsement of Judge Christopher's actions—maybe they were unduly kind to Judge Christopher, rather than being unduly harsh to Judge Walter. Or maybe the answer is somewhere in between. But in any event, thinking about how one's analysis applies to one's friends as well as one's foes can help one take a more fairminded view of the matter.
The same may apply when people are evaluating the magnitude of an offense, rather than its presence. Is something a peccadillo, meriting just some mild criticism? Should it instead lead to firing? Impeachment? Criminal prosecution? There too seeing how we would react to a similar offense by our friend Senator Christopher rather than by our adversary Senator Walter can help us more fairly grasp the magnitude of the punishment. (And that's true even if the person raising this argument is himself doing it for partisan reasons.)
One shouldn't let the misconduct of people on the other side blind us to the genuine misconduct of people on our own. But when deciding what constitutes misconduct, and what is the magnitude of the misconduct, it's helpful for all people to see what happens when the shoe is on the other foot.
