The Volokh Conspiracy - "Like convicted felon and former Attorney General John Mitchell,

Judge Guido Calabresi was appointed by a President who was eventually involved in a scandal that nearly led to the President's removal from office by the Senate. I am not suggesting for a moment that this person is John Mitchell, or is a felon who helped obstruct justice. I want to be clear on that, but it is a situation which is extremely unusual."

Sounds like such a hypothetical statement, if said seriously, would be logically senseless, and an unjustified attempt to smear Judge Calabresi? You bet. And yet I find it hard to distinguish this from what Judge Calabresi seemingly said at a conference of the liberal American Constitution Society (thanks to How Appealing for the pointer):

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. . . .

It seems to me rather odd to compare someone to Hitler or Mussolini based on how they were put into power. The loathing attached to the names Hitler and Mussolini, after all, has nothing to do with the means by which they were installed into office. (It might have a little to do in both cases with the thuggery practiced by their followers that helped them get installed into office — but on that score they are hardly comparable with George W. Bush.)

To analogize someone to Hitler and Mussolini on this score is rather like making the hypothetical statement that I quoted at the start of the post. The premises of the analogy may be literally true, but the analogy is so irrelevant that it seems more effective as a smear than as a logical argument.

But beyond this, I'm not even sure that Judge Calabresi's analogy (as opposed to the one in the hypothetical statement) would be literally true. The German President was supposed to select a Chancellor, and the Italian King was supposed to select a Prime Minister, without regard to whether they had won election. Hitler had lost the Presidential election to Hindenburg, but Hitler's Nazi Party had won a plurality of the seats in the Reichstag, so there was nothing procedurally or legally "illegitimate" about Hindenburg's selecting Hitler. In parliamentary systems, the head of state is often called on to make decisions like that. (Churchill, for instance, was appointed Prime Minister without even any intervening popular election; nothing illegitimate about that, either.)

Mussolini's appointment was more closely tied to the military threat that he posed to the government. But even so, I don't think the King's decision to appoint Mussolini prime minister was procedurally or legally illegitimate from the King's perspective (it was illegitimate for Mussolini to act as he did, but Bush surely didn't use paramilitary groups to win Bush v. Gore).

Now perhaps I'm mistaken on this; if so, I'd be glad if people corrected me on it. (And I should stress that Judge Calabresi, who was born in Mussolini-era Italy, doubtless knows much more than I do about Italian history.) But if I'm right, then the supposed problem with Bush — that he was put into place by an illegitimate Supreme Court decision — doesn't even apply to Hitler and Mussolini.

Hitler's and Mussolini's faults did not include Bush's supposed fault. Bush's faults do not include Hitler's and Mussolini's faults. The supposed analogy that Judge Calabresi is making thus seems to have no basis at all. (Note, incidentally, that Judge Calabresi explicitly stressed that he wasn't criticizing President Bush's actions in office: "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.")

So what possible legitimate role does the analogy to Hitler and Mussolini have here?

UPDATE: See also Instapundit's take and Andrew Sullivan's.

	[Eugene Volokh, June 21, 2004 at 2:22pm] Trackbacks "Like convicted felon and former Attorney General John Mitchell, Judge Guido Calabresi was appointed by a President who was eventually involved in a scandal that nearly led to the President's removal from office by the Senate. I am not suggesting for a moment that this person is John Mitchell, or is a felon who helped obstruct justice. I want to be clear on that, but it is a situation which is extremely unusual." Sounds like such a hypothetical statement, if said seriously, would be logically senseless, and an unjustified attempt to smear Judge Calabresi? You bet. And yet I find it hard to distinguish this from what Judge Calabresi seemingly said at a conference of the liberal American Constitution Society (thanks to How Appealing for the pointer): 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. . . . It seems to me rather odd to compare someone to Hitler or Mussolini based on how they were put into power. The loathing attached to the names Hitler and Mussolini, after all, has nothing to do with the means by which they were installed into office. (It might have a little to do in both cases with the thuggery practiced by their followers that helped them get installed into office — but on that score they are hardly comparable with George W. Bush.) To analogize someone to Hitler and Mussolini on this score is rather like making the hypothetical statement that I quoted at the start of the post. The premises of the analogy may be literally true, but the analogy is so irrelevant that it seems more effective as a smear than as a logical argument. But beyond this, I'm not even sure that Judge Calabresi's analogy (as opposed to the one in the hypothetical statement) would be literally true. The German President was supposed to select a Chancellor, and the Italian King was supposed to select a Prime Minister, without regard to whether they had won election. Hitler had lost the Presidential election to Hindenburg, but Hitler's Nazi Party had won a plurality of the seats in the Reichstag, so there was nothing procedurally or legally "illegitimate" about Hindenburg's selecting Hitler. In parliamentary systems, the head of state is often called on to make decisions like that. (Churchill, for instance, was appointed Prime Minister without even any intervening popular election; nothing illegitimate about that, either.) Mussolini's appointment was more closely tied to the military threat that he posed to the government. But even so, I don't think the King's decision to appoint Mussolini prime minister was procedurally or legally illegitimate from the King's perspective (it was illegitimate for Mussolini to act as he did, but Bush surely didn't use paramilitary groups to win Bush v. Gore). Now perhaps I'm mistaken on this; if so, I'd be glad if people corrected me on it. (And I should stress that Judge Calabresi, who was born in Mussolini-era Italy, doubtless knows much more than I do about Italian history.) But if I'm right, then the supposed problem with Bush — that he was put into place by an illegitimate Supreme Court decision — doesn't even apply to Hitler and Mussolini. Hitler's and Mussolini's faults did not include Bush's supposed fault. Bush's faults do not include Hitler's and Mussolini's faults. The supposed analogy that Judge Calabresi is making thus seems to have no basis at all. (Note, incidentally, that Judge Calabresi explicitly stressed that he wasn't criticizing President Bush's actions in office: "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.") So what possible legitimate role does the analogy to Hitler and Mussolini have here? UPDATE: See also Instapundit's take and Andrew Sullivan's.