June 21, 2004


AUDIENCE GASPS AS JUDGE LIKENS ELECTION OF BUSH TO RISE OF IL DUCE: 2nd Circuit’s Calabresi Also Compares Bush’s Rise to That of Hitler (JOSH GERSTEIN, 6/21/04, The New York Sun)

A prominent federal judge has told a conference of liberal lawyers that President Bush’s rise to power was similar to the accession of dictators such as Mussolini and Hitler.

“In a way that occurred before but is rare in the United States…somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power.That is what the Supreme Court did in Bush versus Gore. It put somebody in power,” said Guido Calabresi, a judge on the 2nd Circuit Court of Appeals, which sits in Manhattan.

“The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy,” Judge Calabresi continued, as the allusion drew audible gasps from some in the luncheon crowd Saturday at the annual convention of the American Constitution Society.

“The king of Italy had the right to put Mussolini in, though he had not won an election, and make him prime minister. That is what happened when Hindenburg put Hitler in. I am not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual,” the judge said.

Judge Calabresi, a former dean of Yale Law School, said Mr. Bush has asserted the full prerogatives of his office, despite his lack of a compelling electoral mandate from the public.

“When somebody has come in that way, they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power. He has exercised power, claimed power for himself; that has not occurred since Franklin Roosevelt who, after all, was elected big and who did some of the same things with respect to assertions of power in times of crisis that this president is doing,” he said.

Now there's a novel theory of the Constitution: the amount of power the president is allowed to exercise is directly related to the % of his victory? Does that mean that, since he got 100%, George Washington was elected God?

Posted by Orrin Judd at June 21, 2004 11:20 PM

Another novel theory is this:
"...a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power."
So a legitimate institution exercising its right to install someone is engaged in an illegitimate act? Is this an example of the state of modern judicial reasoning?

As to references to Hitler and Mussolini, I invoke Godwin's Law.

Posted by: jd watson at June 22, 2004 1:26 AM

Indeed, the thoughtful ruminations of this thoughtful (short?) circuit judge would appear to boil down to:

"Since Bush wasn't really elected (just as Hitler or Mussolini were not elected---but no, heaven forfend, I am in no way equating the President with either Hitler or Mussolini), or if Bush was elected, it was at the very least controversial, relying ultimately on a decision of the court, a decision that essentially enabled him to be president (just like Hitler was approved by von Hindenburg and Mussolini was appointed by the King of Italy---but no, heaven forbid, I am in no way claiming that the American courts in any fashion resemble either von Hindenburg or the King of Italy)...but where was I? oh yes, since Bush wasn't really elected president, at least not in my view and in the view of many Americans, not to mention most people around the world.... Anyway, since Bush wasn't really elected president, then he has one hell of a nerve doing his job and acting like a president. And no, one shouldn't read much into my statement, since I am merely an American circuit judge standing in front of a conference of lawyers pointing out a particularly interesting phenomenon. Most interesting, yes, most interesting...."

Posted by: Barry Meislin at June 22, 2004 2:29 AM

Then there's this from Eugene Volokh (via Andrew Sullivan).

Posted by: Barry Meislin at June 22, 2004 6:11 AM

And this.

Posted by: Barry Meislin at June 22, 2004 6:14 AM

Help me out, here . . . what 80s sitcom had a joke about a Broadway musical called "Mussolini: the Man and His Music?"

Sounds like Judge Calebresi is auditioning for a supporting role.

Posted by: MIke at June 22, 2004 6:23 AM

To clarify: a supporting role in Mussolini, not in the sitcom.

Posted by: Mike Morley at June 22, 2004 6:26 AM

Glenn Reynolds has some comments and more links.

Posted by: Uncle Bill at June 22, 2004 8:44 AM

I am upset that the popular vote was overturned by the electoral college, but it is the law. And so elected, President Bush has every right to advance his agenda - not some phantom consensus of what he should do.

The President is paid to make decisions. I think he's made some terrible ones. But I'd rather have this than no leadership, which is what this guy's theory basically implies.

Posted by: Chris Durnell at June 22, 2004 8:28 PM
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