Decorum

Background:

There is a blog that I frequent located here. In fact, oneway and I are proud to link to that blog, as you can see. It is often a place of spirited debate, where one hears arguments found neither on Rush Limbaugh nor on Air America. Recently, the author made this post. I will not attempt to summarize it for fear of mischaracterizing the argument contained therein. Anyway, it was an argument I disagreed with, as is often the case at Rocket in the Bocket, but one that I was ready to step away from. Through the comments, however, the author further clarified his views and then posted a link to this editorial as further support for his argument (the post is here). At this point, in my opinion, the author crossed a line of propriety in debate. I think it is necessary to answer the arguments contained (mostly in the comments) in the entries linked above and within the editorial. To wit, this:

At the top of the list of things that I abhor about this editorial would be the outrageous selective quoting of Clarence Thomas to actually argue against a condemnation of the 9th Circuit Court of Appeals. It is a ruse designed to feign a middle-ground stance, a lame trick that would have gone unnoticed before the world beheld the wonders of the Internet and the great Google. In case anyone cares to read the full remarks of what Clarence Thomas said, you can do so here.


The article quotes from Clarence Thomas' speech as follows:

“If we are to be a nation of laws and not of men, judges must be impartial referees... By insulating judges from external retaliation and from internal temptations of ambition [by life appointment and irreducible salary], the framers hoped that the judiciary would be free of pressure not only from the government but also from the people.”

You know what goes in the ellipsis? I'll save you the trouble of finding it in the speech. The full sentence was:

“If we are to be a nation of laws and not of men, judges must be impartial referees who defend constitutional principles from attempts by particular interests (or even the people as a whole) to overwhelm them. “

The entire point of the speech was to argue that judges should adopt principles to reduce judicial discretion. He argues that there is a right answer in deciding law and that proper analysis and an understanding of the text (and its intended meaning at the writing of the text) will yield correct solutions to the problems judges face. To quote from this speech to actually argue against those who oppose the 9th Circuit is at best, stupid, and at worst, intentionally deceptive. That court is famous for its rulings that are often counter to common sense and the plain intent of the law. Indeed, it once had three of its rulings overturned by the Supreme Court in the same day. Is it not reasonable to ask the question about what can be done, to “petition the government for a redress of grievances?” Answer: Sure you can, but we'll have to go ahead and call you a Nazi.

Which leads to the second item on my list and the purpose behind our entire debate– namely, this incredible piece of historical analysis: “...one can’t help recalling events in 1930s Germany. The National Socialists removed judges who didn’t go along with the party program.” Is this what passes for discourse today? Am I supposed to say, “Ok, this 'counts' as a reasonable argument from a reasonable person that I would like to rebut,” and then make some reasonable argument against it? Well, unfortunately, this statement does not qualify for that category. Preparing a rebuttal argument to this statement is not only a horrible waste of time, but it also unjustly elevates the statement to the category of statements worth rebutting. That is a shame, but nevertheless, I have wasted that time below. At best, it is an intellectually lazy statement made with the false hope of being provocative and convincing a lazy reader that the author is steeped in historical knowledge. In truth, it is verbal sewage that drastically underestimates the evil of the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei). A statement like that conflates a constitutional process with the racist policies that removed many civil servants from the German government in the 1930s. A statement like that purports to draw comparison between the public hearings of duly elected representatives of a democratic republic and the despicable acts of spying and coercion perpetrated by the Gestapo. Suppose Congress acts and does actually remove a judge as is clearly within its powers under Article 2 Section 4 of the United States Constitution**?. Will the author(s) of this editorial “feel” that the Bush Administration is like the Third Reich? I am inclined to believe that he/she/they will feel that way. Well, guess what? Those “feelings” are wrong.

Finally, it is either the height of naivety or a bold attempt at sophistry to claim that the unconfirmed nominees were denied a vote because of “judicial qualifications.” It is laughable that one would even try to make such a case against Miguel Estrada. This does not imply that he was held up because of “religious beliefs,” but to make such a sweeping statement is reprehensible.

So, what is left in this editorial? Surprise! Nothing. There is no argument here.

This editorial is an example of the soft-minded mush of phrases that increasingly pass for discourse in today's world. It is rife with self-evident statements, false dichotomies, and poorly concealed slurs on the names of upstanding citizens like Miguel Estrada and Priscilla Owen.

Returning to the original comparison of the NSDAP with the “religious right” (whoever they are supposed to be), I will say this: to persist in this notion is childish, boorish, and wholly unwarranted. I am disgusted.

** - Federal judges have historically been interpreted as “civil officers” and subject to impeachment for failing to adhere to the “good behavior” clause in Article 3 Section 1.