Dahlia Lithwick wrote an article in Slate today that seriously advances the idea that the George W. Bush administration is attempting to overthrow the American government and replace it with an Imperial, dictatorial presidency. From her summary paragraph:
In a heartbreaking letter from Guantanamo this week, published in the Los Angeles Times, prisoner Jumah Al Dossari writes: “The purpose of Guantanamo is to destroy people, and I have been destroyed.” I fear he is wrong. The destruction of Al Dossari, Jose Padilla, Zacarias Moussaoui, and some of our most basic civil liberties was never a purpose or a goal—it was a mere byproduct. The true purpose is more abstract and more tragic: To establish a clunky post-Watergate dream of an imperial presidency, whatever the human cost may be.
Of course Guantanamo exists to break people. That is the purpose of all prisons, or at least of all prisons that expect to rehabilitate prisoners. Prisoners are bad men who must be broken down to their basic, childish human components before they can be remade in the image of good men. Guantanamo is a prison, though a luxurious one where prisoners gain an average of 20 pounds from the food (also see here and here). A prison exists to do the things that prisons do: confine; and rehabilitate. Lithwick’s mind-reading leap, from sympathizing with captured non-uniformed enemy jihadists like Padilla (who should be charged with treason and have his citizenship stripped) and Khalid Sheikh Mohammed (the planner of 9/11) to the bizarre conclusion that the American president is conspiring to overthrow the government, is to skip across an uncrossable chasm to gumdrop land, where all children get to eat candy all day long and never face the consequences.
This is a surprisingly insane conspiracy theory to come from a presumably rational source like Slate or a widely published, widely quoted Supreme Court analyst. How has she come to this sad state of affairs? How has a legal analyst come to believe such irrational things?
The Wikipedia biography of Ms. Lithwick establishes the basics.
Dahlia Lithwick is a senior editor at Slate. She writes “Supreme Court Dispatches” and “Jurisprudence” and has covered the Microsoft trial and other legal issues for Slate. Before joining Slate as a freelancer in 1999, she worked for a family law firm in Reno, Nevada. Her work has appeared in The New Republic, ELLE, The Ottawa Citizen, and The Washington Post. She is a regular guest on The Al Franken Show, and has been a guest columnist for the New York Times Op-Ed page. She is a graduate of Yale University and Stanford Law School.
She was brought up in a privileged environment, so she was able to go to Yale University and thence to Stanford Law School. Thus shielded from the reality of what most people do to earn their living, she used her victimhood status (as a woman lawyer… don’t laugh, in her dogmatic feminist world a woman lawyer can be thought a victim simply because she isn’t a man) and her way with words to make a good life for herself, writing a few books then getting the Supreme Court beat for Slate and now appearing in the New York Times and on NPR (those bastions of leftist opinion) and frequently on the Al Franken show on Air America (where barking mad conspiracy theories are served up for breakfast, lunch, dinner, and midnight snack).
Twice in July 2005 Lithwick’s opinionating was subjected to close analysis. First, on July 5, Heather MacDonald reviewed Lithwick’s comments on Justice Sandra Day O’Connor. One of the cases Lithwick mentions, U.S. vs Morrison, was really a case about whether the federal government could usurp the rights of the states to determine criminal sentences using the Interstate Commerce Clause. But to Lithwick, it was a case about a woman against a man, and Justice O’Connor, because she was a woman, should have sided with the woman against the man no matter what the law said.
Legal pundit Lithwick makes no effort whatsoever to address the constitutional question of Morrison; such trivialities are beneath feminist notice. In her view, O’Connor should have upheld the Violence Against Women Act for a much simpler reason: Because she was a woman. Or, to be more precise, because O’Connor had blown open “doors for generations of women after her.” In what passes for reasoning in Lithwick’s world, being a “feminist pioneer” on the Supreme Court means that you possess and act on “empathy to female victims of violence” — though what date rape, say, has to do with advancement to the Supreme Court remains a mystery.
Here’s Lithwick’s “logic”: 1. As a legal pioneer, O’Connor should have empathy for female victims of violence. 2. Having empathy, she must rule in their favor and uphold the act.
In other words, it is the sympathetic identity between a judge and an alleged victim that compels constitutional decisions, not anything having to do with the Constitution itself.
This tribal law pitting identity groups against each other is completely incompatible with the American legal system and the English Common Law from which it arose. It is irrational, and depends on sympathy for one of the two parties in a conflict, deciding the case on the basis of sympathy rather than the merits.
Feminist jurisprudence, however, explicitly rejects the realm of reason. Legal analysis, feminist law professors teach, is just a smokescreen. The law really is a power grab by white heterosexual males to silence the “voices” of women and minorities. Or, as Lithwick writes in the New York Times: Law is a “man’s game.”
This dismissal of legal thought mocks our constitutional framework. If emotion and group identity are the main drivers in every branch of government, having a constitution is pointless, since it will never constrain political will. The Founders believed otherwise, and drafted a Constitution in the conviction that it would set enforceable limits on government power.[*]
To Lithwick and those in her feminist tribe, the law is not meant to be fair or to be applied in a fair way, it is a tool to be used to grab power for her tribe at the cost of another tribe.
We should not expect consistency in Lithwick’s opinions. She sometimes deviates from advocacy for her feminist tribe. Lithwick went on in her indictment of O’Connor to call her to account in Roper vs. Simmons.
Lithwick has a different agenda in mind for judges, at least of the female persuasion: Their mission is multicultural social engineering. In another indictment of O’Connor, she asks: “How could someone who so embodies minority advancement not use her new power to pull everyone else up with her?” Among that “everyone” that Lithwick has in mind is Christopher Simmons, a ruthless teen murderer. Simmons had burgled a woman’s home, covered the woman’s head in duct tape and bound her limbs with electrical wire, and tossed his victim into a river where she drowned to death. Bragging to his friends about the murder, Simmons explained that he had intended to kill because “the bitch seen my face.” [*]
So when a woman is party to the case, Lithwick would have a female judge always side with the woman. But if a woman was murdered by a defendant in a case and the defendant is a member of a certified victim group, then the female judge should side with the defendant because of his victim status, not against the defendant because he burgled, robbed, kidnapped, and murdered someone in a different victim group.
On July 21 and 22, BeldarBlog called Lithwick out as a liar for her anti-John Roberts article that was published in the midst of the John Roberts’ confirmation process. The legal argument is beyond my ability to dissect but this is a good summary.
When you say to the American people, “Judges should be able to overturn laws based on their own personal whims about what’s wise and fair, and I oppose Judge Roberts because he disagrees with me on that,” then the American people can squint hard at you, tilt their heads to one side, and decide whether to cock their shotguns before escorting you off their premises.\*/ That’s much better than telling a lie — which I continue to believe Ms. Lithwick did yesterday.
\*/That’s snark, sarcasm, exaggeration, and hyperbole. I no more want to see Ms. Lithwick threatened with a shotgun than I would want to see one of my daughters arrested for eating a french fry.
Summing up these articles, it is clear that Lithwick believes not in the rule of law, but in judges who decide the outcome of legal cases based on affiliation and whim, in order to grab power for their tribe.
To a man with a hammer, everything seems like a nail. To a woman obsessed by legal power grabs on behalf of a tribe at the expense of another tribe (remember “law is a man’s game”?), everything appears to be a legal power grab. She is not rational, does not value rationality, and is searching for conspiratorial power grabs everywhere. No wonder she was able to “find” a conspiracy. She is a perfect match for Al Franken and those other members of the lunatic left who believe that George McGovern is slightly right of center. They can have her. I do not want her.
Lithwick has chosen her tribe: anti-American, anti-Law, anti-male. She is a legal analyst who does not believe in the rule of law, but in the rule of judges by whim. She is of the lunatic left and does not reflect well on her employers. Slate and the New York Times should fire her.