Topic category:  Other/General

Question: Who of these persons bears any blame for the actual scandal that was the Duke case: United States Supreme Court Justice Clarence Thomas, former Judge Kenneth Starr and the late Senator Roman Hruska?

Answer: None of them.

UNlike North Carolina Central University Law Professor Irving Joyner, Justice Thomas has used one standard regardless of color. UNlike former Durham County, North Carolina District Attorney Michael B. Nifong, Judge Starr let former President Bill Clinton know what the DNA tests results on Monica Lewinsky's blue dress was (BEFORE he testified, avoiding perjury) instead of concealing pertinent evidence (it was NOT Judge Starr's fault that the evidence in that case was INculpatory). UNlike the scurrilous defenders of the Group of 88, the late Senator Hruska vigorously defended traditional America values and supported fair treatment of all instead of scapegoating.

In "Political Scandals, Careless Comparisons, and the Duke case," posted on February 25, 2007, I began, "There are Republican scandals and Democrat scandals, neither of which justifies the other," but emphasized that "[t]he Duke case definitely is a Democrat scandal and extends well beyond the misconduct of an individual."

I further stated:

"Winning over liberals to the cause of justice in the Duke case is a noble goal, of course, and Brooklyn College History Professor Robert KC. Johnson, a self-described centrist Democrat who has not voted Republican, has tried hard and usually very well to do so.

"But a noble end does not justify any means and the dichotomy with respect to the Duke case should not be liberal/conservative. or Democrat/Republican, or black/white, but pro-prosecutorial responsibility/pro-prosecutorial abuse.

"Professor Johnson has invoked the names of two prominent conservative Republicans — former federal judge and independent counsel Kenneth Starr and United States Supreme Court Justice Clarence Thomas — in an apparent to attract liberals to agree with him about the Duke case.

"But Judge Starr and Justice Thomas do not deserve to be lumped with Mr. Nifong.

"Professor Johnson: 'Nifong...is rapidly achieving the apparently unachievable: overseeing an investigation that brings to mind the worst conduct of both sides in the Lewinsky affair. Like Ken Starr in decisions such as subpoenaing secret service agents, Nifong is so convinced of the moral guilt of his targets that he's taken actions (such as arresting the cab driver) that only make him seem like an out-of-control prosecutor.'

"Actually, Mr. Nifong initially believed that there had been a rape, but he realized at the latest when the second set of DNA results came back that there was no credible evidence of kidnapping, rape or sexual assault and proceeded anyway, for personal purposes, in violation of his duty to be a fair and impartial minister of justice.

"As Independent Counsel, Judge Starr did what he swore to do: zealously pursue the truth. He did not conceal it, or fabricate evidence, or lie to the court or defense counsel.

"Comparing Mr. Nifong with Judge Starr might please liberals, but there is a critical distinction between a zealous, but honorable, advocate like Judge Starr and a scoundrel like Mr. Nifong.

"Professor Johnson: '[Sam] Dash served as special counsel to Sam Ervin's Watergate committee; known for his detailed questioning style, he uncovered Nixon's knowledge of the White House taping system during his questioning of Alexander Butterfield. Unlike Cox, however, his legacy was tarnished by events in the 1990s, when he served as "ethics advisor" to Kenneth Starr.'

"Professor Johnson did not exactly state that simply working for Independent Counsel Starr was 'tarnishing,' but to tarnish means to bring disgrace upon and any insinuation that working for Judge Starr when he served as Independent Counsel was disgraceful is...tarnishing. [Note: Stuart Taylor, Jr., who led the exposure of the Duke case as a hoax and is co-authoring a book on the Duke case with Professor Johnson, declined to serve as then Independent Counsel Starr's spokeman, but NOT because he considered doing so tarnishing, or Independent Counsel Starr, dishonorable.)

"Likewise, Professor Johnson's invocation of Justice Thomas in an otherwise on-target article exposing North Carolina Central University Law Professor Irving Joyner as a hypocrite was inappropriate.

"Professor Johnson:

'Based on his comments in the lacrosse case,...it appears that Joyner's personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas. Some might find it a little . . . unusual . . . that it has taken around three decades as a lawyer for Joyner's vehement pro-prosecution standpoint to suddenly emerge.

'For instance, Joyner aggressively defended Mike Nifong's involvement in the April 4 lineup, when the district attorney, in his role as supervisor of the investigation, ordered Durham police to violate their own procedures and confine the lineup to suspects. "You would expect the prosecutor to consult with the Police Department," Joyner told the Herald-Sun in late February. "That is a normal role and function of the district attorney."'

"Ironically, Justice Thomas was the target of false sexual harassment charges concocted in a desperate, but barely unsuccessful, liberal Democrat attempt to block confirmation of Justice Thomas in 1991, because he was a conservative black Republican.

"Like Justice Thomas, the Duke Three were wrongly targeted based on a political agenda.

"Unlike 88ers, potbangers and apparently many Nifong voters, Justice Thomas believes in a colorblind, dispassionate criminal jurisprudence and does not allow intense emotion, or vehemence, to trump the fair and objective administration of justice.

"Justice Thomas is the type of jurist the Duke Three need and people like Mr. Nifong dread."

Professor Johnson: " I used to think the New York Times was the Bible...."

Good News: Professor Johnson learned better.

Bad News: He ever believed it and he recently targeted a conservative Republican Senator who died in the last millennium.

Perhaps it's a liberal Democrat thing.

"CSR: You've stated that you're a Democrat. When you began the blogging [on the Duke case], were you surprised by critics calling you a right-wing nut? Did that make you re-examine some 'right-wing nuts?'

Professor Johnson: "Oh, absolutely. You have to. It's odd. You see groups that you saw before as unabashedly positive, like the NAACP, act the way they have, and your thinking has to change. You say to yourself, if I'm a supposed right wing nut, then 90 percent of the people in this country are too. This didn't surprise me in some ways though. One of the issues I've really pushed is more attention to the history of the American state. Looking at that, you know there's a tendency among activist-left in the academy to just brand anyone who disagrees with them as a right wing-nut. It works, and it's hard for them to give up that stance. ... Put it this way: before this case started I had never seen defending civil liberties as a right wing position."

Constitutional fidelity is both the right and "a right wing position" and it includes defending civil liberties.

Disparaging conservatives by association in simplistic comparisons is a common Far Left tactic, but not exclusive to the Far Left.

Justice Thomas and Judge Starr are not, and the late Senator Roman Hruska was not, the type to cooperate with or be swayed or intimidated by the extreme political correctness campaign against the members of the 2005-2006 Duke University Men's Lacrosse Team.that culminated in bogus indictments that took about a year to be dismissed.

As a sitting justice, Justice Thomas is an easy target for critics, especially since he is not in a position to rebut them the way they should be rebutted.

Justice Thomas' own experience as a victim of false accusations by a (black)female opportunist backed by people with a political agenda put him in a better position to appreciate what has been done to members of the 2005-2006 Duke University Men's Lacrosse Team.

To be sure, the judicious Justice Thomas surely is not soft on crime, but "vehement," that is, intensely emotion, is not a fair characterization of the originalist jurisprudence to which he subscribes.

Professor Johnson did not cite any evidence to support his charge that Justice Thomas allowed intense emotion to determine his decisions, and I am not aware of any.

Worse, any insinuation that Justice Thomas would tolerate the scandalous tactics of Mr. Nifong is not to be believed, even when made by Professor Johnson.

Prosecutorial abuse is not exclusive to Democrats, but the Duke case was a Democrat scandal and, in my view, it continued as long as it did because it was a Democrat scandal.

Professor. Johnson's awesome campaign against the Group of 88 has been educational and effective, but his recent post suggesting that defenders of the 88ers are "channeling Roman Hruska" is...bizarre.

Professor Johnson: "As with defending a figure like [former Judge G. Harrold] Carswell, defending the Group of 88 is no easy task. In the last few days, a few have given it a try. It appears, however, as if they’ve been channeling the spirit of Roman Hruska."

True about defending; false about "channeling the spirit of Roman Hruska."

The late Senator Hruska was an honorable man, not a political correctness nut, and a civil rights supporter, not a racist.

If the defenders of the 88 shared Senator Hruska's traditional American values, they would be excoriating the 88 instead of futilely trying to defend them.

Wikipedia: "Roman Lee Hruska (August 16, 2004 - April 25, 1999) was an American politician from the state of Nebraska. A Republican, Hruska was known as one of the most vocal conservatives in the United States Senate during the 1960s and 1970s. He was often known as a particularly hard-working, old-fashioned, and traditional politician."

As Wikipedia also noted: "Hruska is best remembered in American political history for a 1970 speech he made to the Senate urging them to confirm the nomination of Harold Carswell to the Supreme Court. Responding to criticism that Carswell had been a mediocre judge, Hruska claimed... 'So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? We can't have all Brandeises, Cardozos and Frankfurters and stuff like that there.'"

The late Senator obviously should have stated his point better (and certainly not in a way that could be made to seem anti-Semitic, which he was not).

William F. Buckley, Jr. did state it better, when he said that he would rather be governed by the first 100 names in the Boston phone directory than by the entire faculty of Harvard University.

What America needs is judges and justices who are faithful to the Constitution and eschew imposing their own personal views on America by slyly reading them into the Constitution. No matter how intellectually gifted, a person who eschews constitutional fidelity is unfit to serve. All other things being equally, the brighter, the better, in my view, but constitutional interpretation must not become the province of philosopher-kings and philosopher-queens so emerged in the theoretical that they do not understand reality.

Professor Johnson described the late Judge Carswell as "an undistinguished Florida judge" and asserted that "Carswell billed himself as a 'strict constructionist,' code at the time for opposing civil rights and supporting tough-on-crime rulings.

First, it should be noted that unlike, for example, the first Senator Albert Gore, Senator Hruska voted FOR the Civil Rights Act of 1964.

Second, it should be noted that Judge Carswell is not utterly undistinguished. Wikipedia: "In 1976, Carswell was arrested and convicted of battery for advances he made to an undercover police officer in a Florida men's room; some claim him as the first homosexual or bisexual nominated to the Supreme Court."

Professor Johnson: "The damning praise from the judge’s most prominent supporter effectively killed the nomination."

God works in mysterious ways!

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.