2 responses

  1. As one who has been made a stranger to the protection of the law by the band of black-robed Ba’athist tyrants who rule us arbitrarily and without legal warrant,[1] I have little to give thanks for, as even a mansion without liberty is bereft of value. But I will give thanks for the fact that at least two members of our self-appointed Board of Platonic Guardians (Kagan; see also, e.g., Bork, Will) are actually uncomfortable with the untrammeled power their felonious friends have arrogated unto themselves, and that at least one has the self-confidence and reflective character to permit aggrieved dissenters like me to air often-trenchant criticism. Speaking truth to power has a tendency to make those in power uncomfortable, which is why it is so routinely punished by those in power. See e.g., In re Nett, No. A12-1442 (Minn. Nov. 27, 2013).

    To that end, I write missives my primarily for the benefit of the Judge; to be honest, I don’t care overmuch if anyone else reads them. He does censor me from time to time … which I suspect makes even him uncomfortable, as censorship is the opening argument of the tyrant. Goebbels claimed that it is “the absolute right of the state to supervise the formation of public opinion,” Foreign News: Consecrated Press, Time, Oct. 16, 1933, and Lenin thought that to give the weapon of freedom of the press to one’s opponent is to “ease the enemy’s cause.” Vladimir I. Lenin, Pravda (1912). “The jaws of power are always open to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.” John Adams, A Dissertation on the Canon and Feudal Law (1765). From Tienanmen Square to the local United States Courthouse, the fangs of power are perpetually bared. Justice Stewart adds:

    Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge’s heavy hand.

    Ginzburg v. United States, 383 U.S. 463, 498 (1966) (Stewart, J., dissenting) (emphasis added).

    Ours is a court system that is profoundly ashamed of itself. That fears the unpalatable truth. Winston Churchill’s observations regarding Adolf Hitler apply:

    You see these dictators on their pedestals, surrounded by the bayonets of their soldiers and the truncheons of their police. On all sides they are guarded by masses of armed men, cannons, aeroplanes, fortifications, and the like — they boast and vaunt themselves before the world, but in their hearts there is unspoken fear: They are afraid of words and thoughts! Words spoken abroad, thoughts stirring at home — all the more powerful because forbidden. These terrify them. A little mouse of thought appears in the room, and even the mightiest potentates are thrown into panic.[2]

    “Every idea is an incitement.” Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). I intend to incite reflective thought in what cannot be disputed is a reflective man–even if the general public will never see it. Historian Charles Beard once quipped that the swiftest and most certain way to get oneself “a reputation as a dangerous citizen is to go about repeating the very phrases which our founding fathers used in the great struggle for independence.” Terrorism: Documents of International and Local Control, Vol. 14, 295 (ed. D. J. Musch) (Oceana Pubs. 1997). And though I am only the messenger, I will accept that as a consequence, as our duty as citizens dictates that we cannot sit by and “be an idle spectator to the diminution, the subversion, the destruction of the Constitution.” Barbara Jordan: Speaking the Truth with Eloquent Thunder 24 (ed. Max Sherman) (U. Tex. Pr. 2007).

    Like all ideological house organs (Daily Kos, Townhall), the Huffington Post is considerably less tolerant of dissenting views. Judge Sarokin had me banned entirely (which is why I often post under an alias), and this comment on Judge Gertner’s blog (sans citation) was stricken:

    In a recent blog post, Judge Gertner publicly admitted that she was trained to commit felonies: “When I was trained as a judge the trainer began the session on civil rights, ‘Here’s how you get rid of these cases.’ Fact is that federal judges in my view are effecting a virtual repeal of Title VII.” Her stunning admission begs an obvious question: By what constitutional authority may federal judges exercise veto power over lawfully enacted legislation?[3]

    I will never get a judge to admit in public that it is wrong for a fellow judge to sit in judgment of her own cause. Candor within the Guild has its limits, as Reagan’s Eleventh Commandment is in full force. I have actually had a brief censored by a district court. But as long as I can pose uncomfortable questions–the ones even a Nancy Gertner asks, when her ox is getting gored–and rain the laser cannon of satire on our Great Dictators, my efforts will not be entirely in vain.

    Those of you who actually think you are free should think about what it means to be free, and why nothing less than a constitutional Republic where judges know their place and live within the constitutional limits on their power can be tolerated.

    [1] Madison observed that

    preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.

    James Madison, Address to the General Assembly Of the Commonwealth Of Virginia (undated), reprinted in 2 James Madison, The Writings of James Madison (1783-1787) at 122-23 (emphasis added).
    [2] Winston S. Churchill (BBC Radio broadcast to London and America, Oct. 16, 1938), reprinted at Randolph S. Churchill, Into Battle 58-59 (Hesperides Press 2006)
    [3] http://www.huffingtonpost.com/judge-nancy-gertner/the-virtual-repeal-of-kennedy-johnson-administrations-signature-achievement_b_4311759.html. (‘Before and after’ printouts on file; emphasis added).

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