New York Sun
June 21, 2004


2nd Circuit's Calabresi Also Compares Bush's Rise to That of Hitler

Staff Reporter of the Sun

WASHINGTON — 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.

The 71-year-old judge declared that members of the public should, without regard to their political views, expel Mr. Bush from office in order to cleanse the democratic system.

"That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy," Judge Calabresi said.

His remarks were met with rousing applause from the hundreds of lawyers and law students in attendance.

Judge Calabresi was born in Milan. His family fled Mussolini in 1939 and settled in America. In 1994, President Clinton appointed the law professor to the federal appeals court that hears cases from the states of New York, Connecticut, and Vermont.

An opinion written by Judge Calabresi in 2000 rebuked Mayor Giuliani's administration for failing to respect First Amendment rights.

"We would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York in recent years," the judge wrote. Allies of the mayor denounced the opinion as a thinly veiled political attack on Mr. Giuliani, who was then a candidate for the Senate.

Judge Calabresi made his comments from the floor during a question-and-answer period that was part of a panel discussion on the impact of the upcoming election on law and policy.

"I'm a judge and so I'm not allowed to talk politics. So I'm not going to talk about some of the issues that were mentioned or what some have said is the extraordinary record of incompetence of this administration," he said.

Two Republicans on the panel politely rejected Judge Calabresi's contention that Mr. Bush has overstepped his bounds.

A White House counsel under President George H.W. Bush said Judge Calabresi suggested the war in Iraq was a bold and inappropriate use of power without noting that the president's policy initially enjoyed broad bipartisan support.

"It was approved with a pretty solid vote from Congress," C. Boyden Gray said. Mr. Gray said conservatives believe Mr. Bush has been too cautious on issues like Medicare reform.

"If anything, he's been too shy of doing things," the attorney said.

A top Supreme Court litigator, Jay Sekulow, said it would be unwise to place limits on Mr. Bush's authority simply because he did not win the popular vote.

"To say that a person who comes in under an Electoral College vote but not a majority of the popular vote and they're somehow relegated to president-minus, I think is a very dangerous precedent," said Mr. Sekulow, who is chief counsel for a conservative legal group, the American Center for Law and Justice.

One of the Democrats on stage endorsed Judge Calabresi's comments.

"I absolutely obviously agree with what Judge Calabresi was trying to get at," said a former chief of staff to Vice President Gore, Ronald Klain.

On Friday evening, Justice Breyer addressed the group. His presentation was more restrained. He detailed his thinking on the affirmative action cases the court recently decided. However, most of his remarks consisted of a celebration of the respect that most Americans show for the high court's rulings.

"Ignoring the court isn't done in this family," the justice said.

During a session on corporate crime, a prominent class-action lawyer, Melvyn Weiss of Manhattan, warned that tort reform and similar measures could wipe out the plaintiffs' bar.

Brandishing a copy of a Manhattan Institute report on trial lawyers, Mr. Weiss said, "This is what we're up against, ladies and gentlemen, and if we don't fight it, we're dead meat."

Another panelist said stockholders who said little about corporate governance in the 1990s share some of the blame for the recent corporate scandals.

"We were all making money. We weren't out there saying, 'Get 'em Mel. Go get 'em, Mel," said a former attorney general of Massachusetts and a former president of Common Cause, Scott Harshbarger. He praised New York's attorney general for his investigations.

"Elliott Spitzer has not drilled a dry hole yet," Mr. Harshbarger said.

At another discussion, liberal lawyers said it was hypocritical for Republicans to push federal caps on damages in state tort cases while maintaining that they favor limited federal government.