Glenn Reynolds, the geeky Insta-pundit with a law degree and a public university sinecure, is
shocked, "genuinely shocked" by his former professor Judge Guido Calabresi's comments (see
my previous entry to read what the Judge said) comparing George W. Bush's appointment to power, and his abuse of that power, to the known historical facts about the rise and rule of Italian dictator Benito Mussolini.
The nonsense spewed in recent days by Reynolds, by Eugene Volokh, by Jonah Goldberg, by Rupert Murdoch, and others, deserves a good vetting (what they call "fisking"... Maybe it's time to change the verb to something like "Insta-Volokhing")...
Reynolds writes:
I'm genuinely shocked by Calabresi's comments, which by now I guess must have been reported accurately -- at least, there's no evidence otherwise, and you'd think he'd have said so if he were misquoted. I'm shocked that he'd think something as absurd, ahistorical, and illogical, and I'm even more shocked that when he did think such a thing, he had the poor judgment to proclaim it in a public speech.
Calabresi was always, in my experience, diplomatic; it's sad to think that he might be less concerned with public propriety as a judge than he was as a law school dean. These comments have, as this editorial indicates, damaged his reputation, and that of the federal judiciary.
In an earlier post on the subject, Reynolds confessed to being one of the small fraction-of-one-percent of Americans privileged enough to have had Judge Calabresi as a law professor:
ONE REASON WHY I WOULD RATHER BE AN ACADEMIC than a federal judge is that academics can say whatever we think, and can make outrageous-but-clever points without worry, even if our logic goes astray. Judges can't do that without risking their own reputations, and harming that of the federal judiciary.
This is something that my former law professor, now judge, Guido Calabresi, should have thought about more deeply before making remarks comparing Bush to Mussolini. From an academic, these remarks would have been unimpressive but unimportant. From a Senator, they would have been unfortunately overwrought and divisive.
From a federal appeals judge, Guido's remarks (assuming they have been correctly reported) are not only tendentious and inflammatory, but will serve to further encourage those who call the federal courts politicized and overweeningly liberal. He's a smart and thoughtful guy, but he should have been smarter and more thoughtful here.
Of course, Reynolds doesn't address the substance of Calabresi's remarks: that the nature of Bush's appointment to power (by the Supreme Court) in place of election by a majority (which Bush did not win), is in clear historic parallel to the 1922 appointment of Benito Mussolini by the King of Italy. Judge Calabresi said, "When somebody has come in that way, they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power."
Questions for Reynolds and his crew (that I doubt they'll have the backbone to answer, but maybe they'll surprise us):
1. Is that statement by Calabresi factually true or not?
(Of course it is true! The undisputed facts are in virtually every history book on the subject. Which brings us to the second related question...)
2. What is "ahistorical" (Reynolds' words) about the history provided by Judge Calabresi?
(Reynolds recklessly accuses the Judge of making "ahistorical" remarks, but does not back up his claim with a single verifiable example or fact.)
3. Do Judge Calabresi and others like him who escaped from Mussolini's wave of repression in Italy have a right to draw on that experience, in public forums like that of the American Constitutional Society, in order to analyze current events?
(What's next? Will they tell survivors of the holocaust that they can't comment on its historic parallels if they later become judges?)
4. Do survivors of tyranny, in addition to having a right to speak about it, also have a duty to remind us, today, when we slip into similar authoritarian patterns as a society?
(For that matter, do bloggers, all of us who live and die according to the rights bestowed upon us by the First Amendment, have a duty to defend the free speech rights of others, including judges?)
5. Does a federal court judge have a right, or not, to speak about what is essentially a judicial matter - the impact of a decision by 5 of 9 Supreme Court justices to impose a president who did not receive a majority vote upon the nation - and what the citizens of the nation can do to wash away that stain?
Reynolds and others of his club of para-legal-bloggers (I say "para-legal" because they are like para-militaries: "we're not real judges, we just play them on the Internet!"), are in a tizzy over Judge Calabresi's comments. By them I mean Eugene Volokh, Legal Affairs magazine's Howard Bashman, some clown who claims to be a federal law clerk, National Review's Jonah Goldberg, and those great legal minds over at Rupert Murdoch's New York Post editorial writing club.
The truth hurts, boys, doesn't it?
For three years, this circle-jerk of neocon warbloggers and right-wing pundits, in total alliance with the intimidating powers of the State, has attempted to use the tragedy of September 11, 2001, to shut the rest of us up from raising the real matters at hand regarding a Court Appointed Regime in Washington.
But not one makes a coherent argument (Goldberg tries, but fails) against the essential truth of what Judge Calabresi said, according to the New York Sun:
The 71-year-old judge declared that members of the public should, without regard to their political views, expel Mr. Bush from office in order to cleanse the democratic system.
"That's got nothing to do with the politics of it.It's got to do with the structural reassertion of democracy," Judge Calabresi said.
Well, as Reynolds (sort of) admits, based on his experience as Calabresi's law student, Guido Calabresi is no slouch, intellectually or politically. He set a trap that Reynolds and his little privileged club of aspiring "blogger judges" of the American Legal System fell right into: Calabresi, smart as a fox, chose his words very carefully to withstand any legal challenge (he is an appellate judge, after all), but to also spark a debate over whether he can say that "at a time like this," a debate that has caused Calabresi's remarks to travel far and wide.
If Reynolds and his Peter Principle crowd of academics and wannabes really think, as they imply, that the Judge violated any law or legal canon, they should put their money and writ-writing pro bono time where their keypads are and initiate a lawsuit. And if they don't have the guts to sue - thus bringing more attention to Judge Calabresi's brave and overdue words about what has really happened to America in the past four years - well, then you know that they are just blowing smoke.
As the anonymous "federal law clerk" (the irony of a federal law clerk making political statements about what a judge can or cannot say in public is not lost on the fast class), the aforementioned clown, says out of both sides of his mouth:
"In the past, I have advocated according judges broad free speech rights. I retain this position. In general, I think more harm comes from muzzling judges than from letting them freely speak, even on topics that intersect with politics. What constitutional issue does not have a political dimension, after all.
"But Judge Calabresi's remarks go too far..."
Translation: The remarks "go to far" precisely because they are true, and are said eloquently, at the right time and from the right place, to open a new line of public discourse in American politics... a line of debate that the warbloggers want to prevent from being discussed.
Simply put: We must open a wide debate on the Constitutional issues raised by the cancer on American government and democracy caused by a Court Appointed president who has, again and again, abused the powers appointed to him, without ever having been elected. And the last line of defense against the ratification of this dangerous (yes, Mussolini-like) precedent, as Judge Calabresi accurately pointed out, is the American people.
The central matter facing U.S. voters in November is not one of "Democrat vs. Republican" or other partisan concerns. It is whether we clean the stain off our democracy, caused by the appointment of a president, imposed above the guy who won the popular vote, in time to stop that stain from becoming institutionalized and a permanent part of a post-democracy era.
I am not a Democrat or a Republican. I have no political party. I am very worried though, as a citizen, about what has happened in only four short years to the Republic (and to the rest of the planet that has had to endure the spasms of that Republic's current illegitimacy in its executive branch), because of an impeachable offense by five U.S. Supreme Court justices. (Nathan Newman, Vice President of the National Lawyer's Guild, did put his money where his mouth is, making a heroic effort and public argument to get the Guild to campaign for impeachment proceedings on the five justices. But in the end impeachment proceedings are reserved for Congress alone.)
Congress did not do its duty to impeach them for their attack on American democracy. Al Gore and the Democrats played dead: cowards! They just let it happen. The Commercial Media, however much it wraps itself in the First Amendment, shrunk from the duty that comes with those special protections: to expose and clean the stain. Some bloggers, like the above-mentioned, although they too dine on the protections afforded by the U.S. Constitution (protections which I myself strengthened for them in court), have, beyond shrinking from their duties to that Constitution, reveal their hypocrisy as, after ignoring the assault on that Constitution by five Supreme Court justices, they now bitch hysterically about the public comments, outside of a courtroom, by one giant of a judge.
And soon, in less than five months, we, the people, have our final chance to stop the crime still in process.
History will judge each of us for what we say and do, or don't say and do, at this crossroads moment... just as it today judges those who supported or justified Mussolini's rise and rule in those times.
Judge Calabresi, American hero, has opened the floodgates on the real matter at hand.
The November election, far beyond being a choice between candidates or parties, is a referendum: Do we restore the stolen democratic republic or not? The names of the candidates are mere vessels for the more urgent and overriding question. The answer will be do or die for the formerly democratic republic of the United States of America.