Uncured Bork

by digby

Reading Emptywheel’s post about that horrible old man, Robert Bork, (and his equally horrible buddies) made me wonder if they have reason to believe they can get Libby’s conviction reversed on a technicality.

After all, this isn’t the first time we’ve been to this rodeo. From Robert Parry:

The North case reached the U.S. Court of Appeals in 1990 and the Poindexter case followed in 1991. Iran-contra special prosecutor Lawrence Walsh, a Republican himself, encountered what he termed “a powerful band of Republican appointees [who] waited like the strategic reserves of an embattled army.”

Walsh recognized that many of the appeals judges held a “continuing political allegiance” to the conservative Federalist Society, an organization dedicated to purging liberalism from the federal courts.”It reminded me of the communist front groups of the 1940s and 1950s, whose members were committed to the communist cause and subject to communist direction but were not card-carrying members of the Communist Party,” Walsh wrote. [For details, see Walsh’s Firewall.]

A leader of this partisan faction was Judge Laurence H. Silberman, a bombastic character known for his decidedly injudicious temperament. Silberman had served as a foreign policy advisor to Ronald Reagan’s 1980 campaign and had joined in a controversial contact with an emissary from Iran behind President Carter’s back. [See Robert Parry’s Trick or Treason.] On the appeals court, Silberman took hardline conservative positions and demonstrated an animosity toward Walsh during a hearing on the constitutionality of independent counsels. Silberman also lashed out publicly at U.S. Appeals Court Judge George MacKinnon, an old-school Republican who ran the three-judge panel which had picked Walsh to investigate the Iran-contra affair in 1986. “At a D.C. circuit conference, he Silberman had gotten into a shouting match about independent counsel with Judge George MacKinnon,” Walsh wrote. “Silbermannot only had hostile views but seemed to hold them in anger.” To Walsh’s dismay, Silberman and another conservative judge, David Sentelle, were two of the three judges to hear the appeal of North’s conviction. A North Carolina protege of Sen. Jesse Helms, Sentelle was not as obstreperous as Silberman. But Sentelle carried with him a pugnacious pride in his Republican conservatism. Sentelle had served as chairman of the Mecklenburg County Republican Party and had been a Reagan delegate at the 1984 GOP convention. He named his daughter, Reagan, after the president. Though normally law-and-order judges, Silberman and Sentelle overturned North’s conviction by expanding the protections that a witness receives from a grant of limited immunity. In 1991, Sentelle again served with another Republican judge as the majority on the Poindexter appeal. This time, the GOP judges overturned the convictions by applying a novel argument: that lying to Congress did not constitute the crime of obstruction. Ironically, by expanding the rights of defendants, Sentelle became a conservative judicial hero. Sentelle also wasn’t shy about joining the ideological battle against the left. In the winter 1991 issue of the conservative Harvard Journal of Law and Public Policy, Sentelle praised the writings of right-wing jurist Robert Bork. “Leftist heretics perceive our system of separated and federated powers as a stumbling block to their goal of remaking the Republic into a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state,” Sentelle wrote. Sentelle and Bork shared the view that the American left was riding roughshod over the nation. “Modern liberalism,” according to Bork’s 1996 book, Slouching Toward Gomorrah, “is what fascism looks like when it has captured significant institutions, most notably the universities, but has no possibility of becoming a mass movement.” Only “the rise of an energetic, optimistic and politically sophisticated religious conservatism” can counter “the extremists of modern liberalism,” Bork argued. [For an examination of the intellectual underpinnings of the new religious conservatism, see The New York Times Magazine, Oct. 11, 1998.] Unlike Bork, however, Sentelle had the opportunity to do more than fume about a domineering left. After the North and Poindexter reversals, Sentelle caught the eye of another Reagan appointee, Supreme Court Chief Justice William Rehnquist. Amid mounting Republican anger over Walsh’s Iran-contra probe, Rehnquist removed MacKinnon, the judge who had picked and protected Walsh.

All of these people went on to become deeply involved in the Clinton witchhunts, suddenly finding that the independent counsel statute was quite useful. Sentelle and Silbermann appointed Ken Starr, whom Robert Bork defended for his high minded, straight devotion to duty.

Sentelle is still on the court. Lawrence Silberman is now a senior judge. Rehnquist’s replacement, John Roberts was on that same court. The extremist Janice Rogers Brown is also on that court.

Perhaps the long term friendships, shared legal history and blind partisan loyalties among these people will not be relevant in this case. But let’s just say I wouldn’t be shocked if we get a surprising appellate decision based upon a novel, intellectually inconsistent theory set forth by a bunch of powerful wingnut legal enforcers. It happens.

Update: From Lemieux at LGM, a reminder of one of Bork’s greatest hits.

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