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April 19, 2005

a brief and shamelessly opportunistic history of incendiary language

Don Herzog: April 19, 2005

Long ago and far away, Insight on the News (9/25/95) paired off opposing columns answering the question, "Are militias a threat to the nation's civil order?"  Rep. Peter King (Rep-NY) took the affirmative.  Staunch conservatives, he urged, ought to recognize that milita members were "wackos."

The "citizens' militia" movement threatens the very fabric of a democratic society.  Shouldn't we be concerned about scores of heavily armed private armies being fueled by a steady diet of screwball conspiracy theories, laced with xenophobic and racist elements?  I think so.

I also think the failure of conservative Republicans completely to dissociate themselves from these radical extremists threatens the viability of our party.  I say this as one who has been active in conservative politics since the Goldwater movement in the early 1960s.  (Unlike some of my GOP contemporaries, I was never a Rockefeller Republican.)

Lyn Nofziger, whom you may remember as longstanding Reagan adviser, occasional press secretary, and novelist, took the negative.  More proud than ironic, Nofziger claimed the mantle "wacko" for himself:

We wackos believe government is a necessary evil, not a necessary good.  We believe small government is better and that government is best that governs least.  Some of us even share Thomas Jefferson's belief that "the tree of liberty needs to be watered from time to time with the blood of patriots and tyrants". . . .

Rep. King is confused.  He thinks that because he calls himself a conservative and has been twice elected to Congress that he has the right and duty to judge the motives, the sanity and the patriotism of others.

Timothy McVeigh bombed the Alfred P. Murrah Federal Building in Oklahoma City ten years ago today — spare a somber thought or a prayer for the dead and the survivors, please.  That's some five months before this exchange.  Driving with firearms, he was arrested within hours for speeding and was held in jail.  A couple of days later, the authorities announced McVeigh's arrest and were already confronted with repeated questions about links to the militia or paramilitary movements.  That atrocity provides the backdrop for the exchange between King and Nofziger.

Did Nofziger mean to endorse McVeigh's action?  Of course not.  The thought is preposterous.  But I'm not interested in his intentions.  I'm interested in how ideology works.  Writing in 1999, Nofziger ratcheted up the rhetoric:

These things I believe: That government should butt out.  That freedom is our most precious commodity and if we are not eternally vigilant, government will take it all away. That individual freedom demands individual responsibility.  That government is not a necessary good but an unavoidable evil.  That the executive branch has grown too strong, the judicial branch too arrogant and the legislative branch too stupid.  That political parties have become close to meaningless.  That government should work to insure the rights of the individual, not plot to take them away.  That government should provide for the national defense and work to insure domestic tranquility.  That foreign trade should be fair rather than free.  That America should be wary of foreign entanglements.  That the tree of liberty needs to be watered from time to time with the blood of patriots and tyrants.  That guns do more than protect us from criminals; more importantly, they protect us from the ongoing threat of government.  That states are the bulwark of our freedom.  That states should have the right to secede from the Union.  That once a year we should hang someone in government as an example to his fellows.

I received this snippet by email from The Federalist Patriot a couple of weeks ago, but it's all over the net.  (You read the damnedest things when you start blogging.)  Mr. Nofziger graciously confirmed by email that he did indeed write it.  I disagree with bits of it.  I'm a free-trade kind of guy myself, for instance, and I'm puzzled and amused by the protectionist left and the nationalist/Buchanan right joining in the demand for fair trade.  But I don't just "disagree" with the last claim.  It seems to me outrageous, in a way that the loftier and more diffuse claim from Jefferson about the blood of tyrants doesn't at all.

"But Don, don't you have anything less pedantic to do than quibble with hyperbole?  Surely Nofziger doesn't mean literally that either!"  No, I don't suppose he does.  "Conser[v]ative Kansan" responded to Nofziger with this:

Lyn is close we should begin by hanging a judge a year for a decade.  I know of one in Florida I would nominate for first in line.

Does Conservative Kansan actually mean that we should kill Judge Greer for his role in the Schiavo case?  You will recall that Judge Greer and his family are now under round-the-clock armed guard.

Carnage and threats of further violence:  that's the crucial context for some well-worn recent news.  Not judicial activism.  Not court-ordered gay marriage.  Not Terry Schiavo.  Nope, the crucial context is the specter of Timothy McVeigh and talk of violence.  What well-worn recent news do I mean?

A couple of weeks ago, some conservatives met in DC to discuss "Remedies to Judicial Tyranny."  Phyllis Schlafly called Justice Kennedy's  opinion banning capital punishment for minors "a good ground of impeachment" and urged Congress to discuss the possibility.  The chair of the Home School Legal Defense Association, denouncing Justice Kennedy's use of international law, echoed her call and added,

If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.

This is merely goofy, though I did get a lovely nostalgic kick out of recalling Gerald Ford's drive to impeach William O. Douglas.  But then one Anthony Vieira denounced Justice Kennedy for his opinion striking down Texas's sodomy statute and his "Marxist, Leninist, satanic principles drawn from foreign law."  And here I thought the justice was some kind of natural-rights libertarian:  live and learn.  Himself steeped in Marxist lore, Vieira embraced a maxim from Stalin:

Here again I draw on the wisdom of Stalin. We're talking about the greatest political figure of the 20th century. . . .  He had a slogan, and it worked very well for him whenever he ran into difficulty.  "No man, no problem."

The full quotation from Stalin, as many others have noted, was "Death solves all problems:  no man, no problem."  No, I shan't applaud Vieira for his elegant discretion in abridging the master.

Add Rep. Tom DeLay on the Schiavo case:

The time will come for the men responsible for this to answer for their behavior.

Rep. DeLay has since apologized, kind of, for this comment as "inartful."  Though he dodged a question about impeaching judges, he's still intent on whittling down the courts:

We're having to change a whole culture in this a culture created by law schools.  People really believe that these are nine gods, and that all wisdom is vested in them.  This means it's a slow, long-term process.  I mean, we passed six bills out of the House limiting jurisdiction. We passed an amendment last September breaking up the Ninth Circuit.

I don't think law schools are that powerful, I don't approve of jurisdiction-stripping, and I'd oppose breaking up the "nutty Ninth."  But I am happy that the representative has apologized, if hesitantly, for his ominous threat.  And I'm happy to argue on the merits with Schlafly's overheated plea for jurisdiction-stripping.

But we can also add Sen. John Cornyn's reflection:

I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence.

Violence against judges is not just a recent problem.  In The New York Times (3/19/05), John Kane, a US District Court judge in Colorado, reported that "Since 1970, ten state and federal judges have been murdered, seven of them in job-related incidents."  Kane himself was once under round-the-clock protection when a woman offered $500 to anyone who'd kill him.  His offense?  He'd affirmed an order that her boyfriend be deported.

I'll say it again:  I don't believe Nofziger and the rest intend that anything like this should happen.  I do believe all the following:

  • All the inflammatory language I've quoted is constitutionally protected.  Criminal or civil actions against any of these writers or speakers would properly fail.  (In its last consideration of cross-burning, the Supreme Court muddied the law on when threats become concrete enough to lose first amendment protection.  But I think even Vieira's language is still protected.)
  • Anyone inspired by the circulation of this language to attack a judge is responsible for his action and ought to be punished.
  • It is reprehensible for anyone to tiptoe towards approving violent attacks on judges.
  • It is reprehensible in part because it may well causally contribute to actual violence, even if the law properly won't hold the speaker or writer responsible.
  • It is especially reprehensible given the recent history of actual attacks on judges and their families.

And I think there's a trend here.  In '95, a conservative representative was reproaching the Republican leadership for their silence.  He triggered a lofty comeback from a noted political adviser.  By '99, that adviser's language was heated, even brutal.  By '05, the recycling of that '99 language was producing leering threats online; and a senator and congressional leader were not just silent, but playing with fire.  What should we call people who keep playing with fire after others have been burnt?  Quick, someone alert the White House:  seems like hard times for the culture of life in the Republican Party.  The judiciary seems to make them homicidal.  Are the GOP hardliners "just talking"?  Maybe, but there are any number of Timothy McVeighs out there listening intently.  Meanwhile, Senator Frist will join the dubious festivities of "Justice Sunday" this weekend and lend his name to extravagant nonsense:  "The filibuster was once abused to protect racial bias, and it is now being used against people of faith."  I'm hoping the event will provide comic relief — and that further exposure to this sort of thing will energize sensible Republicans to speak up.  But I fear that speakers will hurl more threats of violence.

Now I can't be sure there's a trend.  I haven't deeply researched the decade's history of this sort of language.  So I confess that my history is brief and shamelessly opportunistic.  But I'm sure that the more recent language of Nofziger, DeLay, and Cornyn is not just shamelessly opportunistic.  It's plain shameless — and downright shameful.


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An excellent post by Don Herzog at Left2Right this morning. Today is the tenth anniversary of the Oklahoma City bombing: a brief and shamelessly opportunistic history of incendiary language Long ago and far away, Insight on the News (9/25/95) paired... [Read More]

Tracked on Apr 19, 2005 9:54:35 AM


Posted by: D.A. Ridgely


Posted by: D.A. Ridgely | Apr 19, 2005 7:58:47 AM

Posted by: Untenured Republican

Don has not asserted this, but it is an inference one might make that ought not to be made. Timothy McVeigh did not act in response to rhetoric by mainstream Republican statesmen and activists. What he was responding to was complex: some of it was rhetoric and support from beyond the pale, and some of it was from the stimuli of actions of government (one apiece for each party: the Gulf War and Waco).

That said, I honestly do not know whether and to what degree incendiary language leads to violence. I'd like to think that when violence happens, it is merely personal pathology, explicable by genetics, upbringing, and current personal circumstances (the recent Lefkow horror suggests that, somewhat counterintuitively in fact), but history provides enough examples to the contrary. Should *we* be concerned, *here*? I don't *think* so. I certainly don't want murdered judges.

I think the more interesting questions lurking in all of this (sorry Don) have to do with the relationship between judges and the rest of the political community, and the role of judicial discretion in judicial reasoning and law application. Not the jurisprudential questions primarily, though those are also relevant. Rather, we are in the midst of (sorry, here it comes again) a national conversation about how much *power* judges should have in our constitutional order. There are many models possible here, and it seems that a significant (or at least vocal) part of the community wants a change. I think we all know enough to know that a major rethink on the role of judges is *revolutionary* (for good or ill). I would not be one to echo Lenin and say that you can't make an omelette without breaking some eggs; I'm more in tune with Brodsky, who is suggested that he was generally repelled by omelettes. But revolutionary rhetoric is the stuff of revolutions. Saying "I don't want a revolution" is also protected speech, but I see a bit of opportunism in those who have tried to focus attention on the incendiary language to avoid a discussion of the revolutionary proposal. What I'm seeing are two sides that very much do not want a reasoned debate on such a vast issue that the public can understand and participate in ni a reasoned way, which is understandable, since the stakes are absolutely enormous and *each* *side* *knows*: if people really grasped what I want, I could lose. Hence more heat than light.

Posted by: Untenured Republican | Apr 19, 2005 8:34:49 AM

Posted by: Josh Jasper

I think, in these time of turmoil, that the same scrutiny, disaprobation and legal penalties should be applied to formentors of domestic terror as it is to foriegn agitiators.

Anyone wanting a good view of domestic terrorism is encouraced to read David Neiwert's blog, Orcinus.

And I thnk that the right wingers calling for the execution of judges, particularly when using Stalinist rhetoric, is facinating, in light of the attempted derailment of a previous thread using Stalinism as a bludgeon against left wingers.

Do I think that the right ought to repudiate them? Yes. But will they? No.

What amazes me is that, at the core, the real issue is that this is a power grab by the Republicans, and, as far as all of them go, it's a damn stupid one. Why? Because the pendulum will swing back to the left again. And the right wingers will have handed the left several tactical nukes.

Honestly now, how many Republicans here would like to have seen Clinton with the power that they Bush administration is grabbing, AND the right to overrule the courts as long as he had a majority in congress?

Posted by: Josh Jasper | Apr 19, 2005 8:50:26 AM

Posted by: Josh Jasper

Untenured Republican: Nice explanation, but there are still death threats against federal judges being made by prmominent right wing activists, and vieled threats by Republican politicians.

As for who's so threatening, I think the Millitia movement, with it's support for Eric Rudolph, and De Lay, with his support of the current band of armed untrained racist thugs "patroling" our borders ought to wory you.

I don;t think this si debate at all. I think it's obvious that the right is trying to intimidate judges "By any means neccesary".

Judge Richard A. Kramer, a Catholic Republican in San Francisco, got death threats for ruling in favor of gay marriage. Where do you thinkt hat hatred comes from?

Ask yourself this: If he'd been threatened by muslim extremists for ruling on a terrorism case, do you think the people who sent him any sort of nastygram wouldn't be getting the once over by the FBI? Sure they would. But investigation of domestic terrorism is underfunded in the US. It's virtualy ignored.

Why? Mostly because foreigners are scarier. But in some cases, there are direct ties between the party in power, and dangerous fringe lunatics with violent goals.

Posted by: Josh Jasper | Apr 19, 2005 9:03:08 AM

Posted by: Untenured Republican

"Power grab" is rhetoric. Politics *is* the art of grabbing power and using it for your ends. To suggest that there is a etam that's interested in power and a team that isn't is stark blinking nonsense.

Regarding tactical nukes (what was that about incendiary rhetoric?), I don't think this is *stupid* in the sense of "Doh! I had no idea I might not be in the majority forever." I think the more serious people who are pushing for a change in the balance of power between the judicial and other branches know exactly what *could* happen but are willing to pay that price to achieve the goal of a depp structural change for what they regard as the better. The ranters are just footsoldiers in their war. You can disagree with it (and as the Rosen piece in Sunday's NYT Mag shows, an important swath of right-wingers do, being seriously enamored with the thought of a little judicial activism all their own) but calling it a stupid powergrab is to seriously underestimate the opposition, which leads back to my favorite snipe: maybe there's a *reason* why the Right is winning? Could it be that, unlike the Left, they (to quote Johnny Rotten) "know what they want and they know how to get it"?

Posted by: Untenured Republican | Apr 19, 2005 9:03:23 AM

Posted by: Don Herzog

Untenured Republican suggests that I am complaining about incendiary language to "avoid a discussion" of how much power judges should have. Huh? In this post, I say I'm happy to argue about the merits of jurisdiction-stripping. In a long and tiresome series of previous posts, culminating in this one, I made some constructive suggestions about the proper — limited — role of courts in considering constitutional matters.

So I think I'm perfectly entitled to complain about this recent spate of incendiary language.

Posted by: Don Herzog | Apr 19, 2005 9:09:21 AM

Posted by: Untenured Republican


Even if the picture you sketch were at all plausible (a sort of Hitler-esque scenario, with domestic terrorists getting instructions passed through several hands from an office in the White House--are you serious? And if not, why insinuate it, if not to produce more heat than light?) that would not change the fact that a "domestic terrorist" is *never* a political (as opposed to a personal--no, Virginia, they're not the same) threat unless there is a genuine political issue real people in significant numbers are really wrangling over.

Josh, let me ask you something: was Malcolm X a "domestic terrorist"? Odd as this may sound, I happen to admire him a great deal. But I don't think that when he said "by any means necessary" he was sending coded instructions to hit-squads to take out white people. That kind of talk is part of the political ecosystem too, and it has its place. I *acknowledged* that it's troubling, very troubling, it may even be dangerous, but I also suggested that focusing on the tone of voice of the messenger instead of the message is primarily designed to distract, in order to make sure that we *don't* have a national conversation about judicial discretion because no one knows how it would play out if we did. I see an awful lot of behavior designed to distract on both sides. But I repeat myself.

Posted by: Untenured Republican | Apr 19, 2005 9:14:27 AM

Posted by: D.A. Ridgely

Intemperate language easily escalates into incendiary language. Speculation as to whether the latter on any particular occasion significantly contributes to any particular violent and putatively political act is counterproductive. On the one hand, it is just that, i.e., speculation; on the other hand, the implicit cautionary message inhibits desirably robust free speech. Politics is not a genteel symposium; it’s a struggle for power.

If whataboutery is off limits, so whatifery should be, too. What if Ted Kennedy had not intemperately and dishonestly ranted about Robert Bork in 1987? What if leftists hadn’t subjected Clarence Thomas to a “high-tech lynching”? Might the political rhetoric have not escalated even further in recent years? Who knows? But who knows, also, whether or what incites the Timothy McVeighs of the world? Some of these folks get their marching orders from sound bites in books, movies and song lyrics, some listen to the voices inside their heads and some take orders from their dogs. If Mr. Herzog’s law school colleague’s recent speech at Stanford somehow prompts some female listener to kill her boyfriend, does that make Catharine MacKinnon complicit in the act?

Look, as though it needed to be said, I also oppose violence, including (but not especially including – why should they be special?) violence against public officials. Hell, I oppose all violence except in self defense or the defense of others. I’m just a tad skeptical, however, about the extent to which the judiciary is suddenly or especially vulnerable. I couldn’t find statistics as to how many sitting judges there are or have been since 1970, but seven murders in 35 years doesn’t sound exactly like an outrageously high number. Yes, yes, I know, one is too many. I agree. But without knowing more context (for example, does the total number of judges include magistrates? administrative law judges?) I really don’t think Judge Kane’s statistic is very meaningful.

This thread already has that “déjà vu all over again” feeling to it. I’m not responsible for what someone who reads my “distrust the government” comments goes off and does. Lyn Nofziger is not responsible if some moonbat strings up a surely DMV employee. I recognize that Mr. Herzog acknowledges this, but I am left wondering what, then, the message here is. Play nice?

Posted by: D.A. Ridgely | Apr 19, 2005 9:15:39 AM

Posted by: Untenured Republican


Did I? I meant to be addressing a larger phenomenon, using your remarks as a point of departure--which was why I apologized for changing the subject. I referred to "those who [do this distraction thing]"--there really wasn't meant to be any "if the shoe fits" implied at all. Having read an awful lot of those constitutional posts, I'd be the last one to suggest that *Don* was ducking a national conversation. At the moment, he's a big part of one, as the archives here show.

Posted by: Untenured Republican | Apr 19, 2005 9:20:40 AM

Posted by: David Johnson

Not to sound too alarmist, but recent comments about the judiciary have reminded me of Sebastian Haffner's description of the transformation of the German courts after the Nazi revolution in Defying Hitler.

Posted by: David Johnson | Apr 19, 2005 9:21:16 AM

Posted by: Don Herzog

I'm happy for political language to be colorful, outrageous, sarcastic, scathing, passionate, hilarious, offensive, prickly, mocking, &c. I do not think we should pretend politics is a boring graduate seminar where everyone is civil and no one actually gives a damn about the outcome. But unless you're in the clutches of some bad slippery-slope argument, that's all perfectly compatible with saying that threats of violence are properly out of bounds. Put differently, free speech is great and ought to be robust. But that doesn't mean anything goes.

Posted by: Don Herzog | Apr 19, 2005 9:25:06 AM

Posted by: Untenured Republican

Hmmm. Now I'm feeling a bit defensive. Indeed it is not the case that anything goes. But which quotes *were* threats of *violence*? Even if we uncharitably interpret absurd hyperbole as literal threats and claimed worries about violence as weasely incitement, how is saying that someone should be impeached (a constitutionally valid procedure, in which, to paraphrase the animal-testing-free label "no one was harmed during the making of this political process") a threat of *violence*? Hell, that's what impeachment is *for* (similarly elections--to channel what might otherwise require violence, with all the harm that implies).

Posted by: Untenured Republican | Apr 19, 2005 9:43:46 AM

Posted by: Don Herzog

Come on, Untenured. This isn't fair. In the post, I say the talk of impeachment is merely goofy. Reread the last line of Nofziger's 1999 paragraph, please. Reread the response of Conservative Kansan. Reread the line from Anthony Vieira. The language from DeLay and Cornyn is veiled, but I think you're kidding yourself if you think their audiences will think, oh, they must be talking about impeachment or jurisdiction-stripping.

Posted by: Don Herzog | Apr 19, 2005 9:47:39 AM

Posted by: Untenured Republican

Hmmm some more. I've gone hunting up sources, and oddly, it's Cornyn that is the most troubling. No, stronger: he's the *only* one I find troubling. Nofziger and "Kansan" can't possibly be taken seriously here, and everyone else looks like they *are* talking about impeachment, jurisdiction, who to nominate and confirm, etc. If you read the Post story from which the Veira quote originates, though I find that calling Justice Kennedy, whom I rather like, "satanic" makes me giggle, it seems *quite* clear that Veira *is* talking about impeachment, exactly impeachment, nothing but impeachment, rather than a one-way ticket to Siberia. And since I doubt that any such action would be successful, and I doubt that they think it would be either, then even that seems pretty nothing, empty noise without meaning.

There's something weird going on here. We all *know* that this is about trying to spook members of Congress into voting up nominees. As Ridgley suggests, this is Bork's Revenge. Until I start hearing people saying that members of *Congress* who vote "wrong" should be strung up from the nearest lamp-post, I'm going back to sleep. I think the Republic is safe for the moment.

Posted by: Untenured Republican | Apr 19, 2005 10:08:26 AM

Posted by: Don Herzog

Nofziger and "Kansan" can't possibly be taken seriously here,

Whyever not? I'm not interested in their intentions as speakers. I'm interested in the reception of their words by audiences. So I don't care if Conservative Kansan turns out to be a little old lady who wouldn't swat a fly. I want to know what happens when people read her suggestion that Judge Greer should be strung up. And for that matter I'd like to know why Federalist Patriot, a gang that laces their email bulletins to me with pious Christianity, chose to post CK's lovely little thought on the web. Shall I send them back the Sermon on the Mount and some Prince of Peace imagery?

Posted by: Don Herzog | Apr 19, 2005 10:18:32 AM

Posted by: pedro

As a corollary of the fact that economic class has become increasingly less important in politics, and that it is 'cultural class' that matters most nowadays, the descriptive bite of the phrase "class warfare rhetoric" is transcending party lines. I never endorse populist leftists' appeal to the 'rich vs. poor' way of delivering their message. And I also cringe at the "people of faith vs. gay/evolutionist/sex-education/judicial activists' agenda". I do fear that the message is received with particular zeal by the right-wing wackos--borrowing the term used by Nofziger--to which it is tailored. Now, Bret may be right that sensible people in the center are not all that worried about the excesses of the right-wing. *Sigh*. But I am, and far more than I am about 'liberals', 'judicial activists', 'gay marriage', 'illegal immigrants', 'feminazis', and other formidable foes of the 'people of faith'. (Incidentally, there are numerous people of faith who take issue with the religious populism of the republican right.)

Posted by: pedro | Apr 19, 2005 10:25:55 AM

Posted by: Untenured Republican

Pedro: and "judicial activism" is an equal opportunity weapon too.

Don: Setting aside the question of whether all nutty rhetoric reveals dangerous nuttiness within, or isn't just posturing, since you've said that's not the issue.

I actually know some folks like that personally (we meet for coffee when the prospective Tenure Committee ain't around). They're pretty harmless as far as I can tell. And I know another guy who goes the other direction to the point of, well, let's just say, extremes. So far I'm not waiting for the other shoe to drop there either. It strikes me as all hot air. But the dangerous types exist, as followers of the Matthew Hale saga know. I guess I'm inclined to see the factors that push specific individuals over the edge as being purely personal.

I wonder if we shouldn't think of extreme political discourse as being sort of like juvenile delinquency. What works, pragmatically speaking? Saying "you know what? You're complaints have no merit, we think you're a lunatic" may make matters worse rather than better. It may depend upon what you think malice is, and whether it is present. I do think that one of the sadder functions of political life is to channel social resentments into less destructive forms. I wonder if we're doing that when we marginalize people who, frankly, scare us. Maybe we ought to all be more like the movie/TV cliche of the sensitive therapist who persuades the guy with the hostage that he really doesn't want to hurt anyone, put down the gun. I don't think "you nutcase! We know you're going to kill them!" is the best strategy. On the other hand, we don't want to give him what he wants either, do we? Life is tricky.

Posted by: Untenured Republican | Apr 19, 2005 10:56:17 AM

Posted by: ya hozna

I agree with Prof. Herzog to some extent, as far as I think I read him: Nofzinger's comments were inappropriate and arrogant, if typical of the Reagan era cronies. (In America's heartland, however, of bikers, skins, gangstas, waitresses, etc. McVeigh is not exactly viewed as a psychotic or villain). Moreover, nearly everything yawped by De Lay sounds seditionist. Yet count me as one willing to endure the inflammatory language regarding corrupt judges, and also one ready to join the line of libertarians and, egads, dixie theists signing the petition to end judicial immunity and to bring the legal business back in line with psychology, with science, with logic.

Posted by: ya hozna | Apr 19, 2005 11:17:36 AM

Posted by: john t

Spike lee said Charleton Heston should be shot with a Bulldog .44,Alec Baldwin called for the killing of the families of Republicans during the impeachment of Clinton,Clinton,never to be outdone,wondered at the big deal being made out of the burning to death of 80 Americans,the recent spate of attacks on conservative speakers,the various fires set in the northwest by an enviro group,yeah rhetoric can be dangerous but at least we've got whataboutery to combat it.

Posted by: john t | Apr 19, 2005 11:43:56 AM

Posted by: D.A. Ridgely

Maybe they're going after the wrong people. Maybe they should be aiming their rhetoric (and, of course, nothing else) at the clerks.

Posted by: D.A. Ridgely | Apr 19, 2005 11:51:54 AM

Posted by: Untenured Republican

Ridgely saith:

"Look, as though it needed to be said, I also oppose violence, including (but not especially including – why should they be special?) violence against public officials."

Because an attack on a public official in response to the discharge of public duties is an attack on the public itself and its institutions, the res publica, the Republic?

Posted by: Untenured Republican | Apr 19, 2005 12:09:14 PM

Posted by: Stuart

Gee, is it just me, or does this post just take a long time to say "people should watch what they say"?

Ari Fleischer got in a lot of hot water for saying that.

Posted by: Stuart | Apr 19, 2005 12:14:24 PM

Posted by: D.A. Ridgely

Whereupon Ridgely respondeth, "Oh yeah, that social contract thingie I never got to vote on."

Posted by: D.A. Ridgely | Apr 19, 2005 12:22:11 PM

Posted by: ya hozna

Maybe I get the philistine du jour badge, but there are I think good grounds for viewing the American judiciary as an anachronism derived from the British aristocracy. Legal concepts and education do seem archaic when compared to say biochemistry, or computer programming, even formal logic.

It's predictable and trite to protest the adversarial system, but (at least in terms of crim. law) if you or someone you know has been involved in a case or two where say the judge made some hasty ruling (allowing mistaken or falsified evidence into the record) and overruled your attorney's objections, then you perceive the extent to which many defendants are phucked. With no specific requirements binding on the judge to establish the truth of particular reports or evidence, falsehoods and lies do enter the record, more often than you might think. I am sure it goes the other way too: that guilty guys have their attorneys dismiss evidence which might have convicted them and are acquitted--

Nonetheless if the judges and DAs were subject to negligence cases or could be prosecuted for mistakes, made either intentionally or not, that would most likely eliminate errors and possible bias. Having more psychologists involved in the entire sentencing process also would be a rational course of action, and an improvement on letting the Knights of the Bar decide the individual's fate with a few swings of their maces. (And there is more than a few wannabe royalist heroes to be perceived among attorneys)

Posted by: ya hozna | Apr 19, 2005 12:36:16 PM

Posted by: arbitrary aardvark

"Since 1970, ten state and federal judges have been murdered, seven of them in job-related incidents."
Since 1970, 10 forklift operators have been murdered, seven of them in job-related incidents. I've heard both that murder is the number one cause of on the job death for women, and that men have a 14 times greater chance of dying on the job. I don't have cites for those stats.
It would be hard to find any occupational category that is murder-free.
In the state of nature, it was a war of all against all, said Hobbes, so governments were created to trade the rule of law for self-help. But various immunity doctrines have taken judges above the law, so aggrieved persons are in a state of nature with respect to the judges.
"judge not lest ye be judged" - is that a death threat? I don't read it that way.
In the nuremburg trials, people were hung for violations of international law. I'm confident the Bush and Clinton regimes had people at least as guilty as the 8 Japanese who were hung. (They were pretty much volunteer scapegoats, liberal or moderate, rather than the emperor and his inner circle of cronies.)

Posted by: arbitrary aardvark | Apr 19, 2005 12:40:32 PM

Posted by: Terrier

Lets talk politics: all this talk about judicial activism is just that, talk! The Christian Right pushing this does not care one solitary whit about Constitutional interpretation. Don't kid yourself and don't try and kid me. They just want to tip the balance of judges in their favor even more than it already is for one simple reason: when they enact their agenda, they don't want the bench slowing them down. In the next decade they will without doubt outlaw abortion and most forms of birth control. They will repeal all laws involving 'living wills.' They will institute some form of censorship on both television and the internets. They will make a serious run at enacting laws that require (in truth, if not in language) religious tests for office. They will conduct legislative purges in the government sector and academia. They will go beyond outlawing marriage for homosexuals and will enact laws prohibiting homosexual conduct. They will do all these things without benefit of judicial review because they are able to frame their quest for power as a crusade to eliminate the last obstacle in their path. Oh, I know this is just extremist talk. They could never get away with doing the things I've described. These laws would be declared unconstitutional!

Posted by: Terrier | Apr 19, 2005 12:55:00 PM

Posted by: Bret

Don Herzog responds to:

"Nofziger and "Kansan" can't possibly be taken seriously here"
"Whyever not? I'm not interested in their intentions as speakers. I'm interested in the reception of their words by audiences."
Well, you're the lawyer, so if you think those words could be taken seriously (as in being incited to action) by someone, then you're the expert, so I'll take your word for it. However, to me the use of the word "we" by both Nofziger and "Kansan" makes it sound (a) hypothetical, (b) first person so as not to be inciting others to action, and not to mention (c) such an unusual phrasing ("hanging"?) as to not seem serious.

Indeed, I found many of the passages you quoted funny enough (i.e. unbelievable enough) that I actually laughed out loud and got some funny looks from my co-workers.

Posted by: Bret | Apr 19, 2005 12:56:52 PM

Posted by: Achillea

I'm not interested in their intentions as speakers. I'm interested in the reception of their words by audiences.

So we've gone from trying to read the minds of the speakers (having at least their words and backgrounds to work from) to trying to read the minds of their audiences? That may well be beyond even the abilities of Professor X, who it's a safe bet is not on the faculty.

I'm trying to figure out what the point is here. There are people who can read into even the most innocuous statement authorization, even encouragement, to do Bad Things(tm). This is neither new nor news. Should it be verboten to say anything that might remotely be construed as a call to actual arms? Much as I might like the idea of Al Sharpton forbidden to utter a single word ever again, I'm pretty sure there are some sticking points in that Constitution thingy.

Where's the line between 'agitation' and 'incitement?' Somewhere around: "Will no one rid me of this meddlesome priest?" Or is it perhaps closer to: "This is a struggle of good and evil ... and we're the good." Who gets to draw that line? And who decides when it's been crossed?

Posted by: Achillea | Apr 19, 2005 1:02:49 PM

Posted by: Achillea

"Since 1970, ten state and federal judges have been murdered, seven of them in job-related incidents."
Since 1970, 10 forklift operators have been murdered, seven of them in job-related incidents.

The number's even higher for teachers and school employees, and we don't even have US Marshals to watch over us. At the risk of being accused of whataboutery, I demand some outrage!

Posted by: Achillea | Apr 19, 2005 1:09:05 PM

Posted by: Don Herzog

I'm outraged. But do you find public figures flirting with suggesting that aggrieved parents should take out their frustrations on the school system by murdering teachers?

Posted by: Don Herzog | Apr 19, 2005 1:12:52 PM

Posted by: Terrier

Why does everyone keep talking about talking. The rhetoric is just an excuse for enacting the nuclear option and packing the courts with judges that will ignore the Christian laws that will be passed. The rhetoric is just a warning for those who remain on the bench that rulings will have consequences. The rhetoric is just a way to distract those foolish enough to support the Radical Republic party while still clinging to the fantasy that abortion can remain legal, birth control can be purchased, religion may be rejected, and the government will be smaller and less intrusive.

Posted by: Terrier | Apr 19, 2005 1:19:03 PM

Posted by: ya hozna

Who is to be feared more, the biblethumping theocrats or the tory-wannabes who make up the majority of state and federal judiciaries. A De Lay may be a primitive zealot but not much more than a Scalia or Anthony Kennedy or Ronald George. At least incompetent legislators can be removed by the consent of the people.

Equating the teacher and other employees to judges is also not really relevant: there's a big difference between Miss O'Sapphy, fresh out of UC Santa Cruz, who wants to teach The Color Purple to your Johnny or Janey, and say some provincial Justice o' the Peace who sends 2 or 3 guys a week to Pelican Bay, 25- death, for having some meth on 'em when nabbed on parole sweeps.

Posted by: ya hozna | Apr 19, 2005 2:49:45 PM

Posted by: SJS

Since crime and criminal justice became a growth industry in this country a number of years ago, it's difficult for me to decide if a judge's death by murder in the course of his work in the courts is just generic street crime, workplace violence, or an occupational hazard.

If our two party democratic republic were a marriage in difficulty, with the abusive spouse being the Republican party, and the Democrats standing in for the abused spouse, (in the interest of gender parity, it's a gay marriage, so they are both male or female, whatever floats your boat), I'd see the two sides here as the ones you might expect in that scenario. The abuser's corner minimizing the abuse, and the abused's corner not so willing to accept that characterization. In some cases, the warning signs are ignored, and someone ends up hurt. In other cases, an intervention takes place, by a member of the clergy perhaps, and marriage counseling is advised and required. That's not going to happen here and divorce is not possible. That does concern me.

Posted by: SJS | Apr 19, 2005 3:27:14 PM

Posted by: heh

"public figures flirting with suggesting"

that expression alone indicates how far you are willing to stretch to make the connections you seek

Posted by: heh | Apr 19, 2005 3:34:01 PM

Posted by: Don Herzog

Stuart writes,

Gee, is it just me, or does this post just take a long time to say "people should watch what they say"?

Ari Fleischer got in a lot of hot water for saying that.

As to the long time, I suppose I'm longwinded. But I wanted to introduce some passages you probably don't know, and put some you probably did in a new context, to illuminate aspects of their meaning you might have missed.

As to Ari Fleischer, when he said it, it was a threat. As Liz Anderson suggested, that makes all the difference.

Posted by: Don Herzog | Apr 19, 2005 3:35:20 PM

Posted by: ya hozna

A judge in LA County, under investigation for child molestation, recently (2/05) blew his brains out with a pistol in his car as the police tried to calm him down. His fellow judges and DAs, attorneys were all quite saddened: no one mentioned the pending case.

Posted by: ya hozna | Apr 19, 2005 4:02:59 PM

Posted by: Steve Horwitz


Handmaid's Tale anyone?

Let me do two quick things:

1. As a libertarian, I hereby repudiate all the threats of violence against public officials made by both right and left.

2. Too many people are confusing the extremist edge conservatism for its rank and file. Do the theocrats-in-waiting scare me? You bet. Do I think the religious folks who vote GOP who live in my village and county share the agenda of the extremists? Nope. Do they know the difference? Yup.

Atwood's cautionary tale is not about to be breaking news on CNN.

Posted by: Steve Horwitz | Apr 19, 2005 4:16:41 PM

Posted by: SJS

"Politics *is* the art of grabbing power and using it for your ends. To suggest that there is a etam that's interested in power and a team that isn't is stark blinking nonsense."


You can disagree with it (and as the Rosen piece in Sunday's NYT Mag shows, an important swath of right-wingers do, being seriously enamored with the thought of a little judicial activism all their own) but calling it a stupid powergrab is to seriously underestimate the opposition, which leads back to my favorite snipe: maybe there's a *reason* why the Right is winning? Could it be that, unlike the Left, they (to quote Johnny Rotten) 'know what they want and they know how to get it'?"

The right quoting Stalin was one thing, but now Johhny Rotten? Perhaps we shouldn't be too concerned.

It is difficult to disagree with that definition of politics. I have heard other definitions. How do you get politics out of government?

Posted by: SJS | Apr 19, 2005 4:24:33 PM

Posted by: ya hozna

Let me do one quick thing:

1. As an anarchist, I hereby repudiate all those, both right and left,
who would claim that subversion and uncivil disobedience, possibly including violence, are never viable preventive measures to be used against corrupt, tyrannical, and/or irrational public officials.

Posted by: ya hozna | Apr 19, 2005 4:28:05 PM

Posted by: ya hozna

Nonetheless, McVeigh was a psychotic okie grunt who got what he deserved. Now Teddy K, on the other hand...........


Posted by: ya hozna | Apr 19, 2005 4:36:25 PM

Posted by: David Velleman

What a depressing discussion. Giving rationalizations for the murder of judges is wrong; giving rationalizations for giving those rationalizations is wrong, too (("they were only joking", "no one takes them seriously", "they're not responsible for how other people react", "hey, it's only seven judges in 35 years -- no big deal" yadda yadda yadda). There are some things that one ought not to risk condoning or conniving at, even at a second remove. But when it comes to the theocrats currently running the country, all of our libertarian commentators would rather quibble about what the meaning of "is" is.

Posted by: David Velleman | Apr 19, 2005 4:52:46 PM

Posted by: Terrier

Steve Horwitz, my God-fearing relatives in the Bible-belt laugh when they hear what used to be Republicans express those sentiments. They have waited far too long to be bought off now with the same platitudes that Grandpa Ronny extended to them on a sponge-tipped spear. The positions of Delay and Frist are not consolation prizes. The rank and file is what you are calling the extremist edge. The fleas your're going to wake up with will weight 300 pounds (my local critter) and will suck the life right out of your illusions. "Cannibals prefer those who have no spines" - Stanislaw Lem, "Or those who will swim in a pot." - Terrier

Posted by: Terrier | Apr 19, 2005 4:53:02 PM

Posted by: Perseus

"...That states should have the right to secede from the Union."

That strikes me as heresy for a member of the party of Lincoln, so I nominate Nofziger as a candidate to be hanged.

Posted by: Perseus | Apr 19, 2005 5:01:55 PM

Posted by: Bret

David Velleman, I don't see how saying "no one takes them seriously" (the actual quote is "can't possibly be taken seriously") is possibly condoning or conniving with the rationalization for murdering judges. To me it means that either the person making the statement regarding the judges is so stupid, absurd, ridiculous, etc. (in which case the intent is to insult, not condone or connive with) or it allows that perhaps the statement wasn't meant to be taken at face value (for example, if someone says "if X is late again, I'm gonna kill him" you probably don't actually have to worry that a murder is about to happen even if X is late).

Don't go get all depressed on us. Perhaps you shouldn't take it so seriously?

Posted by: Bret | Apr 19, 2005 5:26:10 PM

Posted by: ya hozna

Though libertarian attacks on the law biz are often crass, and over-generalized, perhaps a higher score on the nauseameter is attained by those academics, liberals, and gays who fawn over all things jurisprudential, who continually think that judges have some sacred mandate, and who, though professing to be democrats and egalitarians, have more than a hint of Tory elitism about 'em. Reading their endless pleas for civility and tolerance one get the sense they view the courts as a secular church where their fondest hopes and dreams of a chi chi bureaucratic utopia will be realized.....

Posted by: ya hozna | Apr 19, 2005 5:28:03 PM

Posted by: David Velleman

Silly me. Can't take a joke about the assassination of judges. Well, I guess I just have no sense of humor.

Posted by: David Velleman | Apr 19, 2005 5:30:49 PM

Posted by: Bret

Well, that's because as we learned yesterday from Koons:

10. Liberals have absolutely no sense of humor.

Posted by: Bret | Apr 19, 2005 5:38:45 PM

Posted by: heh

"Reading their endless pleas for civility and tolerance one get the sense they view the courts as a secular church..."

I agree, although not so much the pleas for civility and tolerance as the occasional statements about how the Court or Justices "breathed new life into the Constitution" or some such.

Posted by: heh | Apr 19, 2005 5:50:53 PM

Posted by: D.A. Ridgely

Mr. Velleman, your views on abortion disturb me even as my views on whether any or all of the people Mr. Herzog quotes are responsible for subsequent acts of murder apparently disturbs you. However, at my most intemperate moments I don't think I've been quite so dismissive as to reduce your view to "yadda, yadda, yadda."

As for quibbling over the meaning of "is," I rather thought that fell squarely within your professional perview.

Posted by: D.A. Ridgely | Apr 19, 2005 6:13:26 PM

Posted by: Perseus

I know I'll be accused of whataboutery, but a far better case can be made against the remarkable Maxine Waters (D-CA) for helping to incite and justifying the 1992 Los Angeles riots (which resulted in 54 deaths and 2,383 injuries): she ran around yelling "No Justice, No Peace," after the Rodney King verdict, later justified the riots as "a spontaneous reaction to a lot of injustice and a lot of alienation and frustration," and even visited the home of Damian Williams, the thug who, during the riots, beat white truck driver Reginald Denny with a brick and performed a victory dance over him.

Posted by: Perseus | Apr 19, 2005 6:27:27 PM

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