Again with the French Fry Case! (This time Nat Hentoff puts words in Judge Roberts' mouth)

One of Prof. Althouse's commenters provided a link to another article decrying Judge John G. Roberts, Jr.'s opinion in the famous French Fry Case, Hedgepeth — this one by Nat Hentoff in the Village Voice.  Dated September 9th, the article is already badly out of date. (That is, it comes from an ancient time when hard-left Democrats were confident that they could embarrass Judge Roberts and the Bush Administration during his Senate confirmation hearings.) And like Dahlia Lithwick, Peter Rubin, and many others before him, Hentoff could only make Judge Roberts' opinion look bad by falsely attributing to Judge Roberts ugly stuff that they'd made up themselves.

Here's how Hentoff misrepresents the record (ellipsis, italics, and all bracketed portions by Hentoff):

Here is what Judge Roberts said in his decision: "No one is very happy about the events that led to this litigation." Indeed, he added, this 12-year-old girl "was transported in the windowless rear compartment of a police vehicle to a juvenile processing center.... The child was frightened, embarrassed and crying throughout the ordeal."

However, righteously said John Roberts, revealing the core of his humanity under his black robe: "[The arrest advanced] the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts."

On Fox News Channel's July 20 Special Report With Brit Hume, Harvard law professor Laurence Tribe — whose books on constitutional law have often been quoted in Supreme Court decisions — addressed John Roberts's disposition of this flagrant criminal act by 12-year-old Ansche Hedgepeth:

"Saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn't that [decision by John Roberts] violate [the child's] liberty?"

He was referring to the essential constitutional interest in personal liberty that is particularly embedded in the Bill of Rights. Without those 10 amendments, the Constitution would not have been ratified.

Tribe went on to say, "The country needs to know, not how he will rule in particular cases — God knows, in the next 30 years, cases we can't even dream of will come before him — but what will be his starting premises about the Constitution?" (Emphasis added.)

As Tribe put it, "If you're a minor, one french fry and you're busted, [for the judge to show no discretion] needs some explanation."

Roberts gave his explanation in his decision. Ansche Hedgepeth was a delinquent! She and her parents must be taught a lesson about our immutable rule of law. "The question before us," Roberts wrote for the D.C. Circuit Court of Appeals, "is not whether these [Metro system] policies were a bad idea but whether they violated" the Constitution. "We conclude they did not."

Mr. Hentoff is obviously a student of the Maureen Dowd School of Journalistic Accuracy and Ethics. That is to say, at least in this article, Nat Hentoff told lies in print by doctoring his quotes and by fabricating much of what he didn't put inside quote marks.

The sentence that Judge Roberts actually wrote (at page 12 of the .pdf file) was this: "We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts." Hentoff butchers and misrepresents that sentence in several different ways.

First, Hentoff deletes the initial clause of the sentence, the reference to "rationally related," and substitutes for it instead his own phrase, "The arrest advanced ...." Hentoff apparently isn't a lawyer — his Doctorate of Laws from Northeastern University is merely honorary — but he writes frequently on legal matters and is billed as an "expert on the Bill of Rights, the Supreme Court, student rights and education." If so, or if he actually read the rest of Hedgepeth, he'd know that the "rational relationship" language he casually deleted was the key to the entire holding in Part III of the opinion and, indeed, dictated the result. That the Hedgepeth family's claims had to be reviewed under the "rational relationship" test rather than under some more equal protection strict scrutiny was virtually outcome-determinative. Perhaps that's a bit deeper into the law than Hentoff or the Village Voice chose to wander; well, if so, that's fine, but you ought to write about jazz clubs or some other topic altogether. If you're going to write honestly about law, lawyers, judges, opinions, and constitutional law, though, you can't just excise the most important parts.

But having excised the key to the opinion's equal protection holding altogether, Hentoff proceeds to twist Judge Roberts' words, and then simply fabricates others. Judge Roberts never wrote that Ansche Hedgepeth "was a delinquent!" or that "[s]he and her parents must be taught a lesson about our immutable rule of law." And not only did Judge Roberts not write that, nor anything that could be fairly summarized or paraphrased by those words, but those words are antithetical to what he did write. When a minor breaks the law, by definition that is a "delinquent act," and it was impossible to discuss the case at all without discussing the policy choice — created not by Judge Roberts, but by the District of Columbia statute and Metro's enforcement policies — to make juvenile french fry eating a crime requiring arrest. But rather than calling Ansche Hedgepeth "a delinquent," Judge Roberts' opinion actually refers to her by either neutral or sympathetic terms, and his deliberate inclusion of details of her arrest clearly reflect his recognition that she's been a victim (albeit a technically guilty one) of a stupid law and enforcement policy (albeit not unconstitutional ones). "Flagrant criminal act" is Hentoff's characterization, not John Roberts'.

Indeeed, from its opening sentences, Judge Roberts' opinion drips with disapproval and disagreement with the D.C. statute and Metro's policies for enforcing it. He writes:

The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.

This is probably as close to mocking someone as John Roberts has ever done from the bench. Yet is is Hentoff who seeks to portray — falsely, recklessly, outrageously — Judge Roberts as being the sort of "adult who make[s] young girls cry," and enjoys it. We could call Mr. Hentoff's style "mocking as a mockery of the truth."

Hentoff even uses bracketed insertions to distort Larry Tribe's statements! From the context, it's obvious that "why didn't that violate liberty?" referred not to Judge Roberts' opinion (which, by the way, affirmed the district judge's ruling and was joined in fully by the other two DC Circuit judges on the panel), but to Ansche Hedgepeth's arrest. Mr. Hentoff's bracketed insertions would only make sense if Prof. Tribe was saying Judge Roberts was the defendant in the lawsuit, and even Prof. Tribe isn't usually that confused.

(As for the merits of Prof. Tribe's statements: Supreme Court precedents from 1975 and 2001 cited by Judge Roberts (at page 12 of the .pdf file) show that "[t]he law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest[, and t]hat is true even with respect to minor offenses." These comments thus fall into the class of arguments Prof. Tribe feels free to make on TV, but knows better than to ever put in his books or articles, much less argue in court, because they're absolutely foreclosed by the caselaw. To observers more knowledgeable about the law than cable news hosts, such arguments make him look either very stupid or simply dishonest. I, for one, don't think he's stupid.)

Mr. Hentoff, Prof. Tribe, Ms. Lithwick, Mr. Rubin, and others from the left would prefer to have a Supreme Court that decides cases based upon its Justices' feelings. That's pretty much the whole point of Mr. Hentoff's article. Well, okay — I think that's ridiculous, but it's one point of view, and they're entitled to it. They're entitled to oppose Judge Roberts' nomination on the basis that he's made it absolutely clear, by his words and his deeds, that that's not the kind of judge he's been nor Chief Justice he'll be.

But what Mr. Hentoff and his friends are not entitled to do, friends and neighbors, is to misquote, misrepresent, and outright fabricate Judge Roberts' words — to not only unfairly impute repugnant, ugly feelings to John G. Roberts, Jr., but then to argue that those ugly feelings, rather than the law, have been the secret basis for his judicial decisions! It's not enough for them to oppose Judge Roberts' nomination on grounds that he's a judicial conservative who upholds, and decides cases based on, the rule of law. No, they've got to demonize Judge Roberts. Peter Rubin wanted to use the Hedgepeth case to imply that Judge Roberts is a closet racist, and now Nat Hentoff wants to use it to make him into a malicious child-hating bastard. Well, friends and neighbors, that's too vile a tactic even for their allies among the Senate Democrats to use. Not even Chuck Schumer or Dick Durbin would stoop that low. Such a malicious attack in a televised hearing against a man of such obvious decency would have blown up in their faces big-time — and that's why, I think, we didn't hear any mention of the Hedgepeth case from them in last week's hearings.