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Jewish World Review Dec. 14, 2000 / 17 Kislev 5761

Evan Gahr

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Gore's last smear campaign -- ON MONDAY, the Washington Post saw fit to report that Associate Justice Antonin Scalia has a son who works in the same law firm as lead Bush counsel Theodore Olson. The next day, the New York Times reported that Clarence Thomas "faced a serious conflict of interest." The paper "disclosed" that his wife works at the Heritage Foundation and just recently solicited résumés for a future Bush administration. Both stories were peddled by the Gore camp which, of course, hoped to discredit whatever unfavorable ruling the U.S. Supreme Court issues.

Now, the only real conflict of interest here was among journalists. On the one hand, their job is to report genuine news. But they apparently felt compelled to publish pseudo news stories spoon-fed by the Gore camp. Were the latest "disclosures" really fit to print -- let alone play prominently?

Olson's son was not even working on his Dad's case.

As for Clarence Thomas, who precisely said his wife's job is a problem? In order to make a mountain out of a molehill the New York Times quoted a federal appellate judge, Gilbert Merritt of the United States Court of Appeals for the Sixth Circuit. "The spouse has obviously got a substantial interest that could be affected by the outcome," Merritt told the paper of record. He added that Thomas could face a Senate investigation if he didn't recuse himself from the case.

The Times said it was referred to Judge Merritt by "someone in the Gore camp." Perhaps someone in the Gore camp, or even the New York Times, might have taken a closer look at Judge Merritt before anointing him point man for an incipient smear campaign against Clarence Thomas. Over the years, Judge Merritt has locked horns with prominent liberals -- including Charles Schumer and Alan Dershowitz -- for his rather expansive views of the rights of Nazi war criminals. He has even evoked the ire of the Anti-Defamation League for, ironically enough, implicating the esteemed Jewish organization in some rather dubious conflict of interest charges.

In 1991, Judge Merritt enraged Jewish groups when he joined two other federal judges in overturning a deportation order against a former Nazi labor camp guard named Leonid Petkiewytsch. The judges ruled that Petkiewytsch's activities only amounted to "assistance" in Nazi-sponsored persecution; his behavior therefore fell short of the "active participation" which would have justified deportation. In fact, critics charged, federal law on deportations was quite clear; even someone who "assisted" a Nazi-sponsored persecution was to be deported.

The real brouhaha came three years later over another Nazi guard, Ivan Demjanjuk. The United States deported him in 1986, claiming he was the notorious Ivan the Terrible of the Treblinka death camp. In 1993, the Israeli Supreme Court ruled that he was not Ivan the Terrible, but it found sufficient evidence that he had been a guard at several notorious Nazi camps. Nevertheless, Attorney General Janet Reno refused to allow him to return to the United States. She was overruled by Merritt and two other federal judges. They said Demjanjuk could return to the United States to challenge the original deportation order against him.

Next, Merritt and two other federal judges sided with those who alleged prosecutorial misconduct in Demjanjuk's denaturalization trial in 1981. At issue were some seemingly minor documents which prosecutors had failed to give Demjanjuk's defense team. Prosecutors are required to provide the defense with all exculpatory material. And these documents arguably militated in Demjanjuk's favor. For example, a partial list of Treblinka guards from a Polish scholarly journal did not mention Demjanjuk.

But Justice Department prosecutors from the Office of Special Investigations, the division charged with bringing Nazi war criminals to justice, later insisted they did not think the documents were exculpatory. U.S. District Judge Thomas Wiseman ruled that prosecutors from the OSI had acted in good faith -- namely they honestly believed the material in question was irrelevant. The determination of good faith was crucial and normally would have been the end of the matter.

Merritt and his colleagues then used a rather, uh, novel legal theory to overturn Wiseman's ruling. They ruled that the prosecutors had committed "good faith" fraud -- they were so convinced of Demjanjuk's guilt they did not realize the material was important. And why did they have this "mindset" that he was guilty? Because prosecutors had the "mindset" that they "must try to please and maintain very close relationships with various interest groups because their continued existence depended on it." In other words, they wanted to please the Jews.

Ah, the conflict of interest. But the evidence here was rather scant -- or worse. The judges noted that Alan Ryan, the head of OSI during Demjanjuk's trial, had even gone to Israel on a "lecture tour sponsored by the Anti-Defamation League.'' In fact, the 1986 trip took place three years after Ryan left the Justice Department. In response, the ADL called the ruling "fodder for anti-Semites."

Today, Merritt provides fodder for enemies of the rule of law, offering judicial cover to the left's finely honed practitioners of the politics of personal destruction. How sad we'll never know if Al Gore would have appointed him to the Supreme Court.

JWR contributor Evan Gahr is senior fellow at the Hudson Institute. To comment click here.


12/05/00: Fido v. Fido --- the emerging 'pets' rights' movement 12/01/00: Missile defense fog
11/17/00: The Dersh opens his yap one time too many
11/13/00: Gore's biggest missing Florida bloc
11/07/00: Hillary's cruel blow to American pluralism
11/01/00: Given Hillary's history should anyone -- other than society's most radical -- be surprised?
10/26/00: Remembering Gus Hall, that 'all-American' kinda guy
10/19/00: Hey conservatives, Nader wants your vote!
08/24/00: Not So Super-Heroes
08/15/00: Meet Mr. Quotas
08/01/00:The Visigoths are coming! The Visigoths are coming! ... Or so the media thinks
07/12/00: Geraldo's Food for Thought
06/27/00: Time for To Execute a Murderer
06/20/00: Hillary and the Cop-bashers: Will the real Ms. Rodham please stand up?
06/08/00: For voting rights purposes, should criminal offenders be judged not by the content of their character but the color of their skin?
05/10/00: Feminist Majority Rule
05/02/00: The Tin Man's Doctor
03/07/00: Bob Jones hypocrisy: Liberals are lecturing Americans on "anti-Catholicism"?
02/03/00: The red and the Black: The Left-wing Extremist in Bill Bradley’s Camp
01/06/00: Looking backwards: An anchorman's version of the 20th Century
12/16/99: Yellow journalism for the Pink Lady?
12/07/99: How to make the American Psychological Association squirm

© 2000, Evan Gahr adapted from American Spectator's online edition.