To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee.
Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in their hearts (and their classrooms) for the Warren Court, that apex of make-it-up-as-you-go-along lawyering. But even those jurists had the occasional convulsion of modesty.
The most instructive one for present purposes belonged to Justice Potter Stewart. The question before the High Court in the 1964 case of Jacobellis v. Ohio was how to define hard-core pornography for purposes of setting the elusive boundary where protected free expression transmogrifies into criminal obscenity. Assessing the terrain, Justice Stewart confessed that he could not “intelligibly” provide a workable definition … “but I know it when I see it.”
Impeachment has an eye-test, too.
You would never know that from listening to the law profs. Not that it matters much: The most memorable moment in the hearing turned out to be the mind-bogglingly moronic decision by Stanford’s Pamela Karlan to use 13-year-old Barron Trump in one of her many snarky jabs at the president. This, naturally, ignited an explosion of indignation from the pro-Trump right, whose sensibilities did not seem quite so tender when the president was tweeting about 16-year-old Greta Thunberg.
That, just as naturally, inspired an even more embarrassing performance by Professor Karlan: So advanced is her Trump derangement that she is incapable of apologizing for her own poor judgment without taking another snide shot at the Bad Orange Man, lest we forget how morally superior she is.
Suffice it to say, it was a good day for the president.