an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Book of Ecclesiastes has it right: truly, there is nothing new under the Sun.
Liz Cheney and her group "Keep America Safe" is after the lawyers who work for the government but (her ad disgustingly insinuates) are secret sympathizers with Al Qaeda. "Whose values do they share?" appears in bold white letters across the black screen, as the voiceover intones the same words against a background of ominous music. The slanders against government lawyers who represented detainees is an uncanny repetition of Senator Joseph McCarthy's hunt for Communists in government 60 years ago. In one of the most dramatic moments, McCarthy went after a lawyer.
To whet your appetite, start with McCarthy's speech about the difference between the millions of loyal Americans who voted for the Democratic party and the "commiecrats" in government. Then move to the Army-McCarthy hearing, and the exchange between McCarthy and the U.S. Army's counsel Joseph Welch on June 9, 1954. It culminated in Welch's often-quoted lines: "Have you no sense of decency, sir, at long last? Have you left no sense of decency?" The lines are famous, but many who know them will have forgotten the context that provoked Welch: McCarthy's attack on the loyalties of a young lawyer in Welch's law firm who had once belonged to the National Lawyers' Guild. In full Liz Cheney mode, McCarthy says that Welch "has in his law firm a young man named Fisher whom he recommended, incidentally, to do the work of this Committee, who has been, for a number of years, a member of an organization which is named, oh, years and years ago, as the legal bulwark of the Communist Party."
To which Welch responded: "Little did I dream you could be so reckless and so cruel as to do an injury to that lad....If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I'm a gentle man, but your forgiveness will have to come from someone other than me."
Interviewing Liz Cheney, Bill O'Reilly ran side-by-side photos of Deputy Solicitor General Neal Katyal and Salim Hamdan, Osama bin Laden's driver who Katyal successfully represented in the Supreme Court. (Neal Katyal, I should mention, is my Georgetown colleague, on leave to the SG's office.) Some readers might remember Steven Colbert's hilarious 2006 interview with Katyal soon after the Hamdan decision. Colbert began, "You defended a detainee at Gitmo in front of the Supreme Court -- for what reason? Why did you do it?" Neal replied: "A simple thing: he wanted a fair trial...." Colbert (cutting Katyal off): "Why do you hate our troops?" It brought gales of laughter from the audience. Watch the whole thing -- it's one of the few times that Colbert was actually upstaged by his guest.
First time farce, second time tragedy. Colbert's joke is Bill O'Reilly's reality -- the reality of a nauseating reprise of McCarthyism. No one is laughing now.
A few months before the Army-McCarthy hearings, Edward R. Murrow aired his famous "Report on Senator Joseph R. McCarthy." The transcript is here. As Murrow said, the half-truth was one of the staples of McCarthy's diet. ("Upon what meat doth Senator McCarthy feed?") Murrow also observed that McCarthy "didn't create this situation of fear; he merely exploited it -- and rather successfully." He concluded philosophically: "Cassius was right. 'The fault, dear Brutus, is not in our stars, but in ourselves.' Good night and good luck."
Murrow to O'Reilly. First time tragedy, second time farce.