The More They Invoked The Federalist Papers, The Faster
We Counted The Silverware

I’ll take ‘steaming legal turds’ for $200, Alex.


Oh cool, it’s the Daily Double.

No Man Can Be A Judge In His Own Case

It is a fundamental legal maxim — recognized in Federalist No. 10, for example[*] — that no man can be a judge in his own case. This seems to me the precept that Jimmy Carter most flagrantly violated in his condemnation of George Bush as the worst president in history.

James Taranto correctly notes the inversion that Reuters inserts into its account of the White House response to Carter. Reuters absurdly asserts: “Sunday’s sharp response marks a departure from the deference that sitting presidents traditionally have shown their predecessors.” In truth, Carter’s conduct violates the discretion that ex-presidents have generally observed regarding their successors in office.

Among observers commenting on the Judgment of Jimmy are Christopher Hitchens, Gabriel Schoenfeld, Paul Beston, and Roger Kimball. Joshua Muravchik’s February 2007 Commentary essay — “Our worst ex-president” — is also on point, as is Steve Hayward’s more comprehensive The Real Jimmy Carter.

When it comes to pronouncing America’s worst president, the venerable legal maxim disqualifies Jimmy Carter from sitting in judgment.

Posted by Scott at 09:08 PM

Except it isn’t a legal case, and if it were, Jimmy Carter isn’t acting as a judge. Also, if it were a legal case and he were acting as a judge, he isn’t on trial. Furthermore, it looks like somebody’s been hitting this a little harder than usual:

Above: “Federalist Nosegay”

Scott Johnson, a graduate of Dartmouth college and the University of Minnesota Law School, is a senior bank vice president and a fellow of the Claremont Institute. He is the Larry among the three stooges blogging at Powerline, Time Magazine’s 2004 Blog of the Year.

* The passage in Federalist 10 actually reads, “No man is allowed to be a judge in his own cause.” The sense is that in a democratic system, powerful factions should not have free reign to legislate toward their own interests — i.e., that America is to be a nation of laws, not men. As an additional irony in Johnson’s analysis, the fact that no founding document specifically says something like, “By the way, the whole laws-not-men thing specifically includes George W. Bush, should anybody with that name ever become President,” has led to all sorts of fun wordplay and pretzel-twisting by right-wing-authoritarian legal outfits such as the Federalist Society, the tenor of which is that George W. Bush inherently possesses the powers of a king (i.e., is the sole judge in his own cause). [Hanx! J–]

Update: Part of the magic of Powerline is that they’re rarely wrong in just the normal, oops-I-wasn’t-thinking way. The wrongness usually goes all the way around the block, through the woods, and down a familiar rabbit hole or another.

We stand reminded (hanx, Steve!) of the rich and sumptuous history of recent Republican presidents criticizing Bill Clinton, including a stupendously brazen op-ed by Ronald Reagan — or rather, written and published under his name. The occasion is explained as follows:

I had every intention of holding back any comments on the new Administration until it was well in place and its policies became clear. Unfortunately, the policies are already becoming alarmingly clear. With campaign promises dropping like autumn leaves, I can’t refrain any longer.

The op-ed appeared less than a month after Clinton took office.

Thus contextualized, Johnson’s essai reduces to a single proposition, which might be expressed as follows:

Jimmy Carter said something I don’t like. I say poopy on him.


Comments: 35


“I don’t think Jimmy Carter should say these things, and a legal principle having nothing to do with anything says I’m right, as do a bunch of right-wing cranks. Uh, ipso facto, habeas dolorem.”


God damn, it hurts me when idiots and charlatans cite James Madison.

On the other hand, I do always chuckle when teh wingnuts attempt to cite constitutional theory in support of their “arguments.” They never appear as self-serving, hypocritical, and inconsistent when they make these attempts. My favorite such attempt was when Dan Riehl tried to “argue” that we shouldn’t infer that Monica Goodling has something to hide because she invoked the 5th Amendment. Riehl’s “reasoning” was that such an invocation is constitutionally barred from being offered as evidence of guilt. They really don’t get the whole criminal v. NOT-criminal proceeding thing.


In Scott Johnson’s defense, he’s stupid.


Shorter Scott Johnson: I know you are but what am I?


My favorite name for Powerline is Leonard Pierce/Clown Central Station’s moniker “Butt Propulsion Laboratories”


Even if we accept the premises for his, for lack of a better word, argument, it still doesn’t make Carter’s statement invalid. By Scott’s “logic” Carter can still claim that Bush is at least the second worst president ever.


Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.

From Federalist #10, for Scott Johnson.


Putting aside the utter lunacy of the claim that this is a “legal case” as opposed to that thing called “public opinion,” I have the following utterly unbemused reaction:

The Federalist Papers? Good Christ, these people have been looting and pillaging the Constitution for seven years now, claiming that “9/11 changed everything” and the Constitution is such a quaint document but it really isn’t up to today’s challenges, and NOW, now that the whole fucking tinker toy experiment is coming down around their ears, NOW they want to hide behind the skirts of the Constitution?

Take a deep breath, that’s right, just breathe. Easy now. Good, that’s better. Now what were you going to say?

Fuck these fucking cocksuckers. Right in the fucking heart. I have half a mind to drive to fucking Bumfritz, Minnesota and beat Scott Johnson over the fucking head with his keyboard. Wanker doesn’t even begin to describe the depth of the loathing I feel for this dipshit.

OK, I feel better now.


Man. Attacking and smearing ANYONE, no matter how inconsequential, who dares criticize you or your policies started out a Rovian Politics. It has become such an ingrained, holistic part of the Republican party that even the pundits do it almost without thinking, instinctively.

Beyond the sickening (not to mention ludicrous) nature of the smears, they should try to recognize two things. First, you don’t have to attack everybody who you feel attacked you, just the ones who may be in a position to impact your efforts, and second, by attacking everyone you end up lessening whatever value there is in your attacks…

Incompetent doesn’t even begin to describe the whole criminal lot…



Oh hell yeah – what bemused said!


I think that all you need to know about this “judgment” is in the Hitchens piece, a typical bit of Hitchensian agitprop in which he spews out anything and everything negative that he can think of, no matter how ludicrous (Carter is responsible for both the Iranian revolution and the rise of Saddam Hussein? Busy man!). Even Hitchens is hard-pressed to fill out his word count, though, and in the course of dredging through the murky sewers of his memory of the seventies, he describes Billy Carter as–are you ready?–“beer-sodden”. Yes, folks, Christopher Hitchens went there.


Me too- fuck them in the heart.


I still don’t know how you wrote that post title below and didn’t immediately change it to “Hello Mullah, Hello Fatah�. ( I repeat myself here only because I fear my post in the original thread will be lost due to the prolificacy of the damn posters here).

a different brad

Mr. X, congrats.
After 7 years of wingnut rule, you finally made my head explode.
Hitchens called someone else a drunk.
Because their brother was a brewer?
My god.
I take back calling Hitch well spoken. He simply has a big vocabulary.

As for Carter, tis all just sour grapes. They did such a good job of using Carter’s ineffectual Admin as a blunt weapon against liberals they see what’s coming now, n they’s scared shitless.
It’s fun, but it also means the next 20 months will be…. scary.
With Reagan dead there’s no father of conservatism to go to Georgie and talk him off the ledge when a constitutional crisis over impeachment develops the way Goldwater did with Nixon. And impeachment is coming, despite congressional dem’s best efforts. Unless they stop the investigations, impeachment is coming.
And then the nightmare really starts. Can I borrow a gun, mikey?

a different brad

Oh, whoops, it was Billy he called “beer-sodden.” My bad. Tho my brain is still spread across my desk.


They don’t have hearts in which to be fucked. That’s half the problem right there.


Unless they stop the investigations, impeachment is coming.
And then the nightmare really starts.

We’ve always been at war with – well, hell, everybody?

Can I borrow a gun, mikey?

At this point I think we oughta just start building a bunker. Cement, anyone?



I never really got that whole ex-presidents-shouldn’t-criticize-presidents thing. Why the hell not? Who’s better qualified, except for maybe the voters, and as we all know they don’t have any rights at all.

Do we tell baseball players they can’t criticize other baseball players? Musicians can’t criticize musicians? Lawyers can’t criticize laywers? I’m not allowed to note that a hotel room is poorly cleaned? Maybe pundits aren’t allowed to criticize other pundits, that could be fun.


Since when do these people pay attention to the Federalist Papers? Whenever the Dems. oppose the President on anything, these people are all aghast “how dare the Dems. play politics and oppose the President” … yet, um, didn’t Madison in one of the Federalist Papers state “ambition must be made to check ambition”? Playing politics and opposing the President is not a bug, but a feature. Being political is, um, what we pay elected politicians to do.

Don’t these people “get” Democracy?


“In truth, Carter’s conduct violates the discretion that ex-presidents have generally observed regarding their successors in office.”

Interestingly, my parents hometown right-wing rag made a similar comment about Carter’s lack of discretion a while back (in eulogizing Gerald Ford). I wrote a letter to the editor detailing how (1) it was inappropriate and un-necessary it was to make such a slap at Carter in a eulogy for Ford, (2) how other ex-presidents, including — albeit quietly and more subtly than Carter — Ford have not observed this claimed tradition of discretion and (3) ex-Presidents actually owe it to us to not keep their mouths shut: they have valuable experience about which they can and should inform us (even if the current President might be right to not listen to what the ex-President says).

They didn’t print my letter. Although, to their credit, they have printed some of my letters in the past.


can you violate a “discretion that is generally observed”? the two terms do not have equal weight, by any stretch of the imagination. only a dumb person would…oh, what did you say, righteous bubba?

right you are.

a different brad

Not surprisingly, mikey, there’s a big boom in survivalist type homes.
I remember seeing a listing for one for sale in the Rockies that was mindblowing. Many thousands of square feet, all underground in a cement bunker, with a top level that kind of looked like a hobbit house. Had everything, even an air purification system that could handle radiation. My only problem with such places is how to reach em if the shit goes down without living in the middle of nowhere out of semi-paranoia.
Kesey’s Sailor Song seems like less of a disappointment these days, I guess. Tho he better have been wrong about genetic engineering to ruin chronic.


Reuters absurdly asserts: “Sunday’s sharp response marks a departure from the deference that sitting presidents traditionally have shown their predecessors.� In truth, Carter’s conduct violates the discretion that ex-presidents have generally observed regarding their successors in office.

Traditionally, though, we haven’t been hampered by “President”s who are ignorant criminal sociopaths who prompt boxes of rocks and bags of hammers to say “CHRIST that guy’s DUMB!”

So it’s kind of a precendent thing.


If you have any doubt just how false this talking point is about Presidents criticizing one another, just click here. Among other things, Saint Ronnie wrote an op-ed criticizing Clinton’s tax policy less than a month after Clinton took office, declaring in all his pearl-clutching glory that “I can’t refrain any longer” from criticizing the new administration!

Smiling Mortician

the discretion that ex-presidents have generally observed regarding their successors in office

I call bullshit. Ample evidence suggests this is a custom more honored in the breach than in the observance. Selective memory, she is so useful.

Don’t these people “get� Democracy?

Um, no. Next question?


Among other things, Saint Ronnie wrote an op-ed criticizing Clinton’s tax policy

This was written in drool using the end of a banana and has since evaporated.

Herr Doktor Bimler

Is Scott Johnson operating under some sort of Celtic geas, which will rob him of his strength and his job if he ever constructs a sentence that is balanced or elegant in any way?

I mean: Carter’s conduct violates the discretion that ex-presidents have generally observed regarding their successors in office.
Yeah, I know what he’s trying to say, but it’s surprising how many ways that sentence could be rearranged that would make it more of a pleasure to read.


Legalize — interesting point

an even better constitutional citation from Dan Riehl is here:

where he attempts to use the 5th Amendment’s right to property clause to say that Digg users (i.e. private citizens) can’t steal DVDs via the internets tubes.


[updated teh post, btw]


Cokane — even better! That’s about the F9… crack for the anti-copying protection, which isn’t even for _stealing*_ DVDs! It’s a way to get around the copying protection so you can make a copy of a DVD that you (presumably) already own, so you can, say, take it with you on vacation… That way, if you’re unlucky like my aunt was unlucky, if someone steals your DVD case out of your luggage, you still have the original at home and don’t have to pay another 20+ bucks (times however many discs got ripped off)for a new copy.

* Yes, one could crack a DVD’s copy-protection and then distribute the material that was formerly copy-protected via the ‘net. However, I’d wager that most people wouldn’t even bother with the amount of work that it would take to circumvent the copy-protection, rip the data, recompress it (or not…), and then either seed it to bittorrent/other p2p programs or upload it to some server somewhere (and finding one of those takes time and work, too…). I don’t know about anyone else, but I’m entirely too lazy to commit crime, particularly this kind of crime.


Pointing our that the RayGun violated protocol by publicly criticizing a sitting president is much like pointing out that Jesus violated protocol by questioning God’s will. Cuz, you see, the RayGun is Jesus, or God or something. Hail Ronnie!


Your example takes the cake, cokane. I found it especially hilarious that when one poster pointed out that Riehl was way way wrong in his analysis, Riehl refused to update his post and no one seemed bothered that the entire premise of his post was a complete fraud.

It doesn’t matter to those nit-wits because they already *know* for a fact that they are right anyway. Small details like completely misstating constitutional / legal theories, i.e. having zero foundation for their positions, are simply irrelevant.

I wish my life was that convenient.

Yes, Your honor, my legal authority says the complete opposite of what I claim it says, and everyone knows it, but I’m still totally right, I swear.


Well, if his (i.e., Scott Johnson) commentary is subject to ridicule (i.e., your calling him Larry of the three stooges) for being stupid – what are your credentials? I mean, I noticed that one of you is a Grad student, but what credence does that lend your commentary? Equally as stupid, or just a little more stupid since you haven’t yet graduated from school?

Furthermore, there’s a distinct and noticable difference between criticizing a President and criticizing a president’s policy. Policy always has been, and will continue to be, the name of the game in debate. Furthermore, how could who may have been the worst president ever – Carter – honestly and objectively speak on who he thinks is the worst president ever – Bush? I mean, it just doesn’t work. But, attacking his policies is fine and would be contributing to the debate – as it is, Carter was just acting like an Ass. . . literally, not figuratively – oh, well maybe figuratively as well.


mel, carter was criticizing bush’s policies you moron.

and roosevelt ripped taft a new one on a daily basis back in the day and of course reagan criticized clinton 1 month into his administration. and there are plenty of other examples but scott johnson says it just isnt done. thats why he is a subject of ridicule, because he is a moron like you.


From the Fox article linked above:

“I think as far as the adverse impact on the nation around the world, this administration has been the worst in history,” Carter told the Arkansas Democrat-Gazette in a story that appeared in the newspaper’s Saturday editions.

Now: Furthermore, how could who may have been the worst president ever – Carter – honestly and objectively speak on who he thinks is the worst president ever – Bush?

What you say he said is not what he said. I’d ask you what your credentials are but you’d likely misread them.


All of a sudden you need credentials to ridicule an idiot. Nothing like adding paperwork to a perfectly ordinary task. Seems to me like the quality of the work speaks for itself, just like insisting that Carter is the worst… never mind that, that Carter is even not as good as Bush… speaks for itself.

Only in the latter case, it sounds like Stan Freberg as Junyer Bear.


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