a citizen’s journal by Thomas Nephew

Help a Posner-fightin’ blogger out

Posted by Thomas Nephew on January 31st, 2008

Dave Neiwert (“Orcinus”) is doing a bit of fundraising over at his blog, and you should head over and give him some of your hard-earned cash for… what? For nothin’.

Actually, not for nothing. Neiwert is an excellent writer, author, and journalist, who now contributes to the liberal/progressive supersite “firedoglake” as well. In a recent post there, “Repackaging Korematsu,” he picks up on Stephen Griffin‘s observation (at “Balkinization”) that a certain variety of legal mind is now trying to peddle the story that Korematsu v. United States — the Supreme Court ruling OK’ing the Japanese internments during World War II — was only a terrible decision in guilt-ridden, liberal, 20/20 hindsight. Among said peddlers, I’m not surprised to learn, is the “pragmatist” judge and frequent op-ed scribbler Richard Posner. Griffin:

Apparently making a comment about liberals today, Posner states: “Liberals detest Korematsu, but not because it allowed pragmatism to trump principle; rather because of suspicion of the military and a sense of shame about the history of the nation’s mistreatment of East Asians.”

And surely we can all agree that suspicion of the military and shame about mistreating East Asians are mere emotional outbursts, unworthy of such eminent and pragmatic folk as ourselves. But Griffin and Neiwert make the point that the internments weren’t just opposed in hindsight; Griffin writes that “[m]ost responsible lawyers with access to relevant information knew the internment was unjustified at the time.” Neiwert:

The problem, of course, is not that “pragmatism trumped principle” in the Korematsu ruling — it’s that hysteria trumped both pragmatism and principle, a hysteria fueled by unchecked military officials seeking to accrue new powers outside the purview of the courts. […]

Neiwert makes a couple of important points that extend and crystallize Griffin’s post. First, the argument helps “the Bush administration further open wide the hole in the Constitution (one, in fact, largely created by the internment episode) by wildly expanding executive-branch powers during wartime.”

The second and perhaps even more instructive point is that the “Korematsu — you had to be there” notion was also circulated by the eminent legal thinkers and noted online harpies Ann Coulter and Michelle Malkin,* illustrating the principle that in the wingnut ecosphere, the worse the idea, the more often it is reconsumed and re-excreted.

Another “Balkinization” post by Eric Tamanaha once crystallized my own feeling that while Judge Posner might write elegantly, he was a worthless guide to human rights, civil liberties, and especially to how to safeguard them with the laws he’s supposed to judge by. According to Tamanaha, Posner once wrote:

The way I approach a case as a judge–maybe you think it heresy–is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program.

Perfect: start with the result you want, and work your way back to the legal flim-flammery you can employ to justify it. Those of us watching this kind of thing from home may often feel powerless to stop it. But with David Neiwert’s help, at least you know what’s going on and can observe the life cycle of a nasty little wingnut idea, from its birth as a judicious little sentiment in a $34.95 hardback by Judge Posner, to its final instar as degraded spewings by Coulter or Malkin.

So when you give Neiwert a nice donation, why, it’s almost like you’re personally kicking Posner or Malkin in the shins. Surely that’s worth a little something.

* See Muller vs. Malkin and Malkin v. Muller on this site. — It’s not clear Neiwert means to imply otherwise, but it seems to me Posner’s arguments preceded Malkin’s. Judging by the “Bush v. Gore” description in Griffin’s post, he seems to be citing Posner’s 2001 book “Breaking the Deadlock,” though the judge appears to have made a similar argument in a 2003 book “Law, Pragmatism, and Democracy”. Either way, Malkin — whose book was published in 2004 — is likelier to have picked up the general idea from Posner than the other way around.

UPDATE, 2/1: LOC photo added. — My post fails to mention that Mr. Neiwert has written a book about the Japanese internment, “Strawberry Days: How Internment Destroyed a Japanese American Community,” so I’m correcting that here.
UPDATE, 2/26: Kip Esquire (“A Stitch in Haste”) is another Posner-fightin’ blogger, e.g., More Posner Rantings Against Civil Liberties, 9/27/06.

2 Responses to “Help a Posner-fightin’ blogger out”

  1. Nell Says:

    a hysteria fueled by unchecked military officials seeking to accrue new powers outside the purview of the courts
    Muller made this point repeatedly in an appearance late last year before a Japanese-American group that I caught the second half of on C-SPAN. He was discussing his new book, which covers the mechanics and bureaucratic implementation of internment.
    At every turn, the brass who pushed the policy chose the path that would have the effect of maximizing their chances of permanently getting unaccountable, unchecked powers.

  2. Thomas Nephew Says:

    Thanks for this, Nell. Turns out the speech was recorded and can be watched online; found it via Muller’s “is that legal?” blog, where Muller also discussed the “Korematsu revisionism” concern in mid-January.
    Re the “who came up with this stuff” sweepstakes: Neiwert wrote me to say he thought Bradley and Goldsmith (Griffin’s other data point, which I didn’t discuss — a casebook by these two professors) were taking their arguments not from Posner but from a reading of Malkin. So did Muller, at least at first, but Bradley wrote in to say it was not their intent to misrepresent the facts of Korematsu. Both Griffin and Muller seem to accept that.
    That leaves Posner as the earliest instance, back in 2003 and possibly in 2001. If I’ve got this all right, this was a case of “trickle down” seepage from Posner to Malkin (Neiwert writes that she cites him), and not also “upward seepage” back to Goldsmith and Bradley.

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