The fair and balanced New York Post, the mentally anguished Andrew Sullivan, the always stupid and childish Glenn Reynolds, the typically more intelligent Eugene Volokh, and snark without substance Jonah Goldberg all respond with outrage to Guido Calabrisi's statements to the audience (myself including) of the American Constitution Society on Saturday afternoon.

The problem with this outrage is that Calabrisi's comments, made by one of the brightest legal minds in the country, are UNDENIABLY true. Sure, references to Hitler are bad, but look at what Guido actually said:

"In a way that occurred before but is rare in the United States ... somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power. The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy. The king of Italy had the right to put Mussolini in, though he had not won an election, and make him prime minister. That is what happened when Hindenburg put Hitler in. I am not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual. 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. He has exercised power, claimed power for himself; that has not occurred since Franklin Roosevelt who, after all, was elected big and who did some of the same things with respect to assertions of power in times of crisis that this president is doing."

This is TRUE. And he disclaims any other position other than that Hitler wasn't given electoral legitimacy, which was the WHOLE POINT of his comments and fit well into the theme of the democratic purposes of the Constitution which ran through the whole convention. And it's not like the comment was random, it was at a panel on the relationship between the election and the future of the Constitution. He also points out the similarities between FDR, a man loved on the left and scorned for torching the constitution on the right. The obvious point was that if you want to test the fringes of executive power (see Youngstown Sheet and Steel and Torture Memo), that the legitimization of a democratic majority is what protects the constitution. In other words, illegitimate + weak = Hayes (not so bad), legitimate + overpowerful = FDR (not so bad), illegitimate + overpowerful = Mussolini (bad!)

Nor do the whiners mentioned above have any real response other than "wahhh!"

Reynolds writes: Judges can't [say whatever they want] without risking their own reputations, and harming that of the federal judiciary. (This is why Reynolds...bwahaha...would rather be an academic than a federal judge, even though he's barely any more of an academic than Derschowitz...it's because he likes the freedom to say stupid things, not because he's grossly incompetent.) But Scalia says LOTS of political things LOTS of times, and the reputation of the judiciary is surely more hurt when the judiciary injects itself into the political process through force de jure than through speeches at conventions. Nor does Scalia's friendship with the Vice President when Scalia himself is deciding a case critical to Bush's re-election hopes (and where Scalia will almost undoubtably cast the deciding vote) show any less "harm".

Volokh's "much more vigarous spanking" begins: "Judge Guido Calabresi was appointed by a President who was eventually involved in a scandal that nearly led to the President's removal from office by the Senate. I am not suggesting for a moment that this person is John Mitchell, or is a felon who helped obstruct justice. I want to be clear on that, but it is a situation which is extremely unusual."

THIS is supposed to make us think that Calabrisi's comments were out of line? Besides being a total non sequitor, who cares? It's clear that the argument "Calabrisi's appointment is illegitimate because the President...got a blow job" lacks any connection, and thus the whole sentence nonsense. Furthermore, Volokh's hypothetical gives no reason to connect Calabrisi getting an appointment from a President who was eventually involved in a scandal (i.e. every judge appointed by W., Clinton, Reagan, or Nixon) should make us really care one bit, whereas Guido at least gives a clear reasoning, whether you agree or disagree, for his statement and for why it's important.

Volokh goes on to say the analogy is irrelevant. But it's not, which is why Volokh's hypothetical (which is irrelevant) promotes laughter instead of outrage. On the other hand, the idea that an unlegitimate appointment combined with a rarely-precedented power grab into the hands of an unaccountable executive lacks any worthiness of discussion or debate is a fairy incredible claim. That democratic Italy and Germany ceased to be democracies because a leader in that country illegitimately took power and used it forcefully, attempting to develop popularity through nationalism and military buildup and the weakening of civil liberties could hardly be MORE relevant to Bush, particularly if the analogy "may be literally true".

While it's likely that Bush, whose election was less illegitimate and whose power grab less in scope, will pose less of a threat to democracy, the analogy remains important SIMPLY BECAUSE IT EXISTS, IT'S RELEVANT, and it's TANGIBLE. A democracy protects itself, as Guido so obviously pointed out, by knowing its inherent weaknesses and guarding against it.

Finally, we have Jonah who completely missed the point (since when did Lucianne's golden child ever care about the point?), and Andrew Sullivan's "speak for itself" style only confirms that Guido was totally on point.

Is this the best the right's most popular bloggers can come up with? At least we know that Alex Kozinski's comments are safe should he ever have a change in heart.

UPDATE: Eugene Volokh responds and says that I'm being harsh and that I'm unpersuasive. As for harsh, well, it's not called DownWithBush for nothing. If we were trying to create a blog that was less about advocacy and more about neutral discussion, we probably would need a new name. Also, I do note that Volokh is generally thoughtful, and that Glenn Reynolds and Jonah Goldberg tend to be the opposite of thoughtful, which I think is a fair assessment :).

And for unpersuasive, well, I think the context that I provided and the arguments that I made haven't been addressed in any real sense by any of the posters, including Professor Volokh, that I listed above.

To Professor Volokh: as for the accuracy of the quote: I can't remember the exact words that Guido used, but he did make a comment which was along the lines and with the spirit I mention in the post (the quote comes from Sully). Hitler and Mussolini, I think most of the audience who was there got the very clear message from Judge Calabrisi that the reference was structural and not any "Bush is Hitler and a Fascist." Judge Calabrisi's comments about FDR, his invoking of Hitler only once in tangent, and his disclaimer were meant to be heard, not read, and in that sense, did not convey the overreaching idea that the blindless defenders of Bush would like it to in order to not have to actually consider the idea that WAS conveyed.
- posted by Justin @ 10:50 AM