Bill O'Reilly glossed over objections to a new book by Missouri judge Robert H. Dierker Jr. -- which attacks "femifascists" and "illiberal liberals," and has a chapter titled "The Cloud Cuckooland of Radical Feminism" -- while allowing Dierker to assert, unchallenged, that, "almost by definition," liberals are the ones who primarily engage in judicial "activism."
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On the January 2 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly glossed over objections to Missouri circuit judge Robert H. Dierker Jr.'s book, The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault (Crown Forum, December 2006), while allowing Dierker to assert, unchallenged, that, "almost by definition," liberals are the ones who primarily engage in judicial "activism." In his book, Dierker reportedly frequently uses terms such as "femifascists" and "illiberal liberals" and, in the first chapter, titled "The Cloud Cuckooland of Radical Feminism," attacks feminists, raising questions about Dierker's ability to rule impartially. O'Reilly did not address these concerns, stating only that Dierker's critics "say that you're now prejudicial toward any liberal cause that comes in."
Instead, O'Reilly allowed Dierker to assert without challenge that, compared with liberals who "almost by definition" engage in judicial "activism," "the conservatives, to the extent that they react in an effort to limit or overrule illegitimate precedent, are simply restoring the Constitution to where it was before it was rewritten by judges who feel that the text has no meaning and is subject to reinterpretation, rewriting, you know, at the moment." But, as Media Matters for America has previously noted, under one standard for identifying judicial activism, it is those Supreme Court justices who are most frequently labeled "conservative" who are among the most activist. A study by Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder suggests that those Supreme Court justices often labeled strict constructionists -- or, more accurately, "originalists" or "textualists," who purport to discern and apply the true original meaning of constitutional provisions -- are the real judicial activists, striking down legislation passed by Congress at a significantly higher percentage than their "liberal" counterparts.
Dierker's book was released on December 26, though excerpts of the book were reportedly leaked earlier and circulated in the legal community. According to the St. Louis Post-Dispatch, "Chapter 1" of Dierker's book "has circulated via e-mail since last month and been widely read in legal circles, lawyers and judges say. The sentiments expressed in that chapter, which frequently uses the term 'femifascists' and is titled 'The Cloud Cuckooland of Radical Feminism,' have already prompted a complaint with the state body that can reprimand or remove judges." In the first chapter, Dierker states:
If Social Security is the "third rail" of American politics, then sex is the third rail of American law. Anyone who touches it, except in the manner approved by the tyrants of tolerance, is fried. In this realm, the tyranny of tolerance is best described as rule by the radical feminist cadre of liberalism. Like the rest of the illiberal liberals, femifascists display single-minded devotion to imposing their tyranny on the American people -- and will viciously punish those who resist.
According to the Associated Press' excerpts of the book, other notable quotes from the book include:
- "Just as we saw with the femifascists, illiberal liberals don't want equality; they want to make some people more equal than others. And they've made it happen through their dominance of the courts over the past seventy-five years. Liberals have converted the courts from the 'least dangerous' branch of government envisioned by the Founding Fathers to the most dangerous." (From a chapter titled "Making Some Americans More Equal Than Others," about the 14th Amendment and equal protection under the law.)
- "This is liberal law in a nutshell. History and tradition count for nothing; the language of the Constitution itself counts for little; the only criterion is whether a ruling will advance the liberal agenda." (From the chapter "Ozzie and Harriet Are Dead," about abortion and the attack on the traditional family.)
From the January 2 edition of Fox News' The O'Reilly Factor:
DIERKER: I don't know that it's new. I think what is new is the increasing tendency of the courts to be called in to suppress the dissent. My own -- the publication of this book has drawn attacks to seek to remove me from office.
O'REILLY: Right. They don't like the fact -- they say that you're now prejudicial toward any liberal cause that comes in. But what I'm trying to get at is this. We talk a lot about liberal activism on the bench here. Is there conservative activism? I mean, we saw in the Ten Commandments down in Alabama where the chief justice of Alabama said, "Look, I'm going to defy federal law, and I'm going to keep the Ten Commandments up. That was conservative activism. But is there more liberal activism than conservative activism?
DIERKER: I think activism, almost by definition, goes on the liberal side because the conservatives, to the extent that they react in an effort to limit or overrule illegitimate precedent, are simply restoring the Constitution to where it was before it was rewritten by judges who feel that the text has no meaning and is subject to reinterpretation, rewriting, you know, at the moment.
O'REILLY: What I'm trying to get at here is -- is it throughout the United States more activism on the left just because of the sheer numbers?
DIERKER: No, I don't think it's sheer numbers. I think it's the position that the liberal judges are in, the Supreme Court of the United States. This is very much a top-down phenomenon. If the appellate courts are promoting a specific agenda, then those of us like me who are the foot soldiers, you know, we play by the rules.
O'REILLY: So you really believe that there is a left-wing agenda being promoted by the judiciary in this country?
DIERKER: Well, I think that it's being promoted through the judiciary and with, certainly if not the active initiation by judges, certainly the acquiescence and --
O'REILLY: They know it's happening? Any judge would know it was happening?
DIERKER: Well, and I think its there's an endorsement in opinions that express a view that the judiciary has effectively no limits on its power, that the judiciary can impose taxes, that the judiciary can control --
O'REILLY: Gay marriage.
DIERKER: -- the conduct of the war, that the judiciary can dictate to the legislative body, you know, what marriage will be. You know, I think those things are going on. I think it's a philosophy that has permeated the judiciary to a degree that is very alarming.
O'REILLY: It is alarming, I think. Because once you take it from the folks and put it in to guys like you, even though you're a conservative judge, but judges themselves -- and they start to make the laws, that's not the way it was set up.
DIERKER: Well, that's not. And I think that -- you talked about conservative activism. But, again, you know, I think that the belief that the Constitution has a meaning and that that meaning has to endure and control over generations is a very important one. Because if you don't have that, if you don't have that dedication to that principle, then you have -- you don't have just judicial independence. You have judicial imperium. You have the judiciary --
O'REILLY: They run the country.
DIERKER: -- running the country.
O'REILLY: Not the folks through their elected officials.