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Rosen, Judges & Me



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In Sunday’s Washington Post, Jeff Rosen, a law professor at George Washington and an editor at The New Republic, does two things that give writers a deservedly bad name: he links my book to threats against judges, and quotes something written here on NRO rather than my book.

He writes, in part: “The U.S. Marshals Service reports a ‘dramatic increase’ in threats against federal judicial officials in recent years. And political attacks on judges seem to grow ever more vitriolic. The title of a best-selling new book makes its unsubtle point: ‘Men in Black: How the Supreme Court Is Destroying America.’”

This is truly pathetic hyperbole. You simply cannot read my book and conclude that I am making over-the-top political attacks on judges. You might disagree with my assessment or conclusion about a justice and his or her given opinion or approach to the law. But Rosen’s attempt to mischaracterize my book as encouraging threats or harm against anyone, which is the clear implication, is grotesquely irresponsible.

Rosen also writes, in part: “Some justices have been senile, racist, and crooked,” Mark Levin, author of the conservative ‘Men in Black,’ told the National Review Online. According to Levin, ‘de facto judicial tyranny’ today ‘frustrates and disenfranchises the American people and thwarts representative government.’”

I assume Rosen read my book, yet nowhere in his opinion piece does he actually cite to it. My full quote, which actually appears on page 1, states: “The biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principles, and moral. Others have been mentally impaired, venal, and even racist.”

Again, quoting from NRO, Rosen also writes, in part: “According to Levin, ‘de facto judicial tyranny’ today ‘frustrates and disenfranchises the American people and thwarts representative government.’” He adds: “In addition to its intemperance, the accusation that judges are anti-democratic elitists is also flatly wrong. As Mark Tushnet of Georgetown University Law Center argues in a less popular but far more convincing new book, ‘A Court Divided,’ the Rehnquist court has actually supported the views of a narrow majority of the American people, rather than thwarting them, in all the most controversial cases of the culture wars, involving affirmative action, gay rights and access to early-term abortions. …”

I’m not surprised Rosen would find Tushnet’s book more convincing as nowhere in his opinion piece does he actually discuss what’s in my book. In any event, to argue that the Court has represented even a narrow majority in the culture wars is laughable — from affirmative action and partial birth abortion to the Pledge of Allegiance and the 14th amendment’s supposed recognition of same-sex sodomy. And the 800 pound gorilla ignored by Rosen is the Court’s latest reliance on foreign law to strike down juvenile death penalty statutes. More to the point, Rosen ignores completely my analyses of the various instances and techniques by the Court to skirt the confines of the Constitution, as well as the occasions where I argue that the Court failed to exercise its legitimate power to strike down certain unconstitutional acts.

I don’t expect a liberal law professor to be convinced by my book, which is why it’s not written for the likes of Professor Rosen. But I do expect intellectual integrity when commenting on it.



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