A Flurry of Cheap Shots

April 5, 2005

My good friend, Mark Levin, penned an outstanding and incredibly timely book, “Men in Black,” which has been on the New York Times list seven weeks (today we’ll find out that it made it the 8th week as well) running. The activist judiciary loving elitist Left has contempt for the themes in Mark’s book, as liberalism accomplishes many of its aims through extraconstitutional judicial policy making. The attacks were predictable, but the viciousness of some of them have even surprised me. On April 1, Dahlia Lithwick, writing in Slate, wrote a bitterly nasty piece about Men in Black that I had the misfortune of reading. I want to share the link to her nasty piece with you so that you can: a) experience the vitriol first hand, rather than relying on my characterization and b) understand the essay I’m about to share with you.

After reading the piece I asked Mark to respond to it and to let me post his response on my website. Mark’s response is below (you won’t want to miss it):

Frankly, I never heard of Dahlia Lithwick before April 1st, when her column, “The Limbaugh Code,” Slate Online Magazine, was forwarded to me by a friend. I thought her piece about my book, Men in Black, was an April fool’s joke. Now I learn that she’s a regular writer/editor at the always fledgingly Slate, from where she purportedly covers the Supreme Court. I have no idea how she came to such a lofty position. As best I can tell, her depth of experience includes clerking for the chief judge of the Ninth Circuit Court of Appeals, which is overturned repeatedly by her beloved Supreme Court. Thereafter, she joined a family law firm in Reno, Nevada, where I have no doubt she was among the town’s top lawyers on matters Reno — quickie marriages and divorces. I understand she has written, or co-written, two books, one which can be purchased on Amazon.com for 63 cents, about the price of toilet paper. Even her friends at NPR and the New York Times couldn’t convince people to read them.

So, it comes as no surprise that Dahlia Lithwick — if indeed that is her real name — would have such difficulty comprehending Men in Black. Lithwick complains that “Levin follows the lead of lazy pundits everywhere who excoriate ‘activist judges’ without precisely defining what constitutes one.” This is a damning criticism. But, wait a minute — look at page 13: “A judicial activist … construes the Constitution broadly and rejects some of its provisions outright (or gives them superficial acknowledgment) if they interfere with the desired outcome. In essence, activist judges make, rather than interpret, the law.” Did Lithwick actually read the book, or just stop at page 12? And, of course, judicial activism versus originalism is a central theme throughout the book.

Another insightful Lithwick criticism is that I “block quote” from Supreme Court decisions when discussing those decisions. Imagine, quoting the original source for the purpose of examining its meaning. There are no more or less quotes from Supreme Court decisions than most other books on the topic. But I suppose I could have followed in the footsteps of the great Harvard law professor Laurence Tribe and “paraphrase” verbatim the work of others. But that would be wrong. I note that Lithwick’s use of the phrase “block quote” itself appears to have been sourced from a March 30 customer review on Amazon.com. (See Thomas Bux “Cigar Lover” Barnesville, PA) That qualifies her as a speechwriter for Senator Joe Biden, not a serious Supreme Court reporter.

Lithwick also makes the amateur’s mistake. She seems to think that originalists oppose the proper functioning of the judiciary. Originalists oppose activism. Since judicial review is not an explicit constitutional power, it must be exercised with restraint and fidelity to the other branches of government. This doesn’t mean the Supreme Court rubber stamps all decisions by the other branches, such as its disastrous McCain-Feingold holding. Its rulings must have a constitutional basis and context. So, of course, there will come times when the Court can and should rule against another branch, as long as it’s rooted in the Constitution (not, for example, foreign law).

However, what Lithwick and the other judicial supplicants reject is respect for the elected branches in this constitutional give-and-take process. As I argue, if Congress believes the Court is wrong, it has recourse as well. In other words, in all cases the Supreme Court’s opinion is not necessarily the last word, at least not according to the Constitution. Among other things, Congress can use its Article III power to limit the jurisdiction of the federal courts. Perhaps Lithwick missed this lecture in her high school government class. Notably, Lithwick doesn’t even attempt a defense of judicial activism. That would be a debate worth having, but which she’s incapable of engaging in.

Not content to just throw mud, Lithwick vilely accuses me, along with Rush Limbaugh and Tom DeLay, of fomenting threats and violence against judges merely for criticizing their activism. Somehow she never noticed the venom spewed by her likes at the Supreme Court for its Bush v. Gore decision, or the personal attacks against Clarence Thomas, Antonin Scalia, a score of Bush nominees, and Robert Bork.

Lithwick said she felt like she needed a shower after reading Men in Black. Perhaps she’ll bring a copy of the Constitution with her next time she visits the bathroom.