4/05/2005

The NYT bestseller no one is talking about

And Dahlia Lithwick of Slate dumps on it magnificently:
...Mark R. Levin's Men in Black: How the Supreme Court Is Destroying America was ranked eighth on the New York Times list this week; it's been on that list for six weeks now, and seems to be leaping off the bookshelves, despite the fact that it concerns constitutional law and the U.S. Supreme Court. Yet it has been reviewed virtually no place and written up by almost no one...It's selling, it seems, almost entirely due to endorsements by Rush Limbaugh, Sean Hannity, and Fox News. Men in Black was published by Regnery Publishing—the outfit that brought us Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry last summer. Serious journalists spent serious time debunking the claims set forth in the Swift Boat book, but absolutely no one seems to be taking on Levin. This isn't too surprising: For one thing, there's no election on the line. And for another, no serious scholar of the court or the Constitution, on the ideological left or right, is going to waste their time engaging Levin's arguments once they've read this book. I use the word "book" with some hesitation: Certainly it possesses chapters and words and other book-like accoutrements. But Men in Black is 208 large-print pages of mostly block quotes...padded with a forward by the eminent legal scholar Rush Limbaugh, and a blurry 10-page "Appendix" of internal memos to and from congressional Democrats—stolen during Memogate. The reason it may take you only slightly longer to read Men in Black than it took Levin to write it is that you'll experience an overwhelming urge to shower between chapters. The argument here is not new. In fact, one of the reasons it's impossible to call Men in Black a work of legal scholarship is that there is not an original piece of analysis in it. Levin is railing against the Supreme Court for being a bunch of "activist judges"...But Men in Black never gets past the a.m.-radio bile to arrive at cogent analysis. Each of the first three chapters ends with the word "tyranny." Absent any structure or argument, this book could just have been titled Legal Decisions I Really, Really Hate. Levin follows the lead of lazy pundits everywhere who excoriate "activist judges" without precisely defining what constitutes one. He offers four random examples of "activist decisions" which mysteriously include Dred Scott v. Sandford...and Korematsu v. United States...Reading his hysterical attacks on Justices O'Connor and Kennedy, you'd forget they are largely on his side and substantially different creatures from the court's true liberals. But Levin seems as incapable of distinguishing between jurists as he is incapable of differentiating between cases or doctrine. He's happy to decimate the court as a whole...I can understand completely why the serious legal thinkers of this world have no interest in engaging with Levin on his legal scholarship...But ignoring this book won't keep it from tearing up the best-seller list; and it's unwise to write off everyone who reads it as a Swift Boat lunatic. In the past weeks, we have seen a quiet sea change with death threats to—and actual attacks on—judges becoming disturbingly common. To refuse to acknowledge the call-to-arms behind Men in Black, as the press and most of the legal academy has done, can feel like intellectual integrity. But it also represents a failure to take part in a national conversation that may have very serious long-term consequences for the courts. It may be a conversation that requires some of us to take a lot more showers. So be it.

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