Year: 2006

I have long been brought up to a belief that tolerance is a virtue, not a vice or a vise. Evidently, not all people have this same belief. The irony of the situation is, of course, that if I truly believe in tolerance, then I must also be tolerant of the intolerant.

I must admit that at times this stretches my capacity for tolerance to the maximum, but I hope that I refrain from harassing the intolerant too much. Refrain, that is, until faced with situations where I feel the intolerant can exercise power over others, and then I’m afraid I must set aside my tolerance of the intolerant and practice a little of what they preach.

Such is the case with the story in St. Louis Today, about the release this week of a book by a sitting Missouri judge, Robert Dierker, titled Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault.

This is a man who currently sits as judge in the 22nd district court of the city of St. Louis. He hears both criminal and civil cases, including civil cases based on discrimination and sexual harassment. Keep this mind as you read this excerpt from the first chapter of the book:

In 1998, a case came before me in which a woman alleged that the male defendant, who apparently had been her employer, had inflicted emotional distress based on alleged sexual harassment. The defendant’s alleged harassment involved making sexual advances and touching the plaintiff (in a manner that stopped well short of actual sexual assault). The plaintiff had previously litigated a claim of employment discrimination based on the same course of conduct of the defendant, and lost. So now she was recasting the claims, in part to avoid the statute of limi- tations that now barred the employment claims.

I carefully researched the law of Missouri to see whether the plaintiff’s theories were defensible as a matter of law. As pleaded, they were not, I concluded. I had law clerks do independent research on the matter, and they confirmed my own view of Missouri law. At the time the case came before me, Missouri law on “sexual harassment” as infliction of emotional distress was sparse; it seemed the plaintiff wanted to import certain theories of federal employment law regarding “sexual harassment” into Missouri common law.

Having reached a conclusion based on impartial examination of the law, I wrote an opinion dismissing the woman’s claim of infliction of emotional distress, but giving the plaintiff an opportunity to revise her claim to meet what I thought were proper legal standards.

In that opinion, I felt obliged to sound an alarm about the threat that radical feminist sexual harassment theories pose to common sense and common law, especially because such views could easily lead to fictitious claims and vexatious suits. I was blunt in my criticism of radical feminist views of sexual harassment law. “The question before this Court,” I wrote, “is whether a wholesale extension of notions of ‘sexual harassment’ into tort law is warranted, without direction from the people through the [legislature]. The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor [feminist scholar] Catharine MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”

I concluded my opinion by observing the danger of imposing liability based solely on speech. “[T]he sexual harassment police,” I wrote, “seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace.” More specifically, I noted that it seems clear to everyone “except for the denizens of the cloud cuckooland of radical feminism” that no court had ever held a sexual advance to be actionable in and of itself.

This is a man who goes on to write that there is nothing wrong with your boss or co-worker hitting on you, asking for sexual favors on the job, as long as they don’t hold up your promotion or decrease your pay because you said no. Now, I have to ask the women reading this: how would you like to work in an environment where you’re faced with sexual innuendo, unwanted advances, and ‘non-sexually assaulting’ touch on a day to day basis? That casual hand on the knee during a meeting, or caress on the cheek? Repeated requests to “Go out for me for a drink after work”, or “I really want to fuck you, bad”?

I’ll ask the men: how would you like to see your mothers, wives, sisters, daughters, and friends treated in this way?

As one weblog, Pub Def noted, it’s interesting to note how publication of this book was held up until after the recent election. Dierker defends himself saying that the voters moved to keep him on the seat and therefore we cannot have problems with his viewpoints or actions.

Judge retention is based on a spot in a ballot with a question: retain this person or not? Remaining on the bench based on this is nothing more than the action of a typical lazy voting public that does not research each judge’s actions, but can’t resist responding to every item on the ballot. It is not a vote of confidence: it is a vote of automation.

If the judge believes he is saying nothing wrong, one would think he would have promoted this book before the election, rather than after.

When one also considers the favorable, almost worshipful review of the book by the St. Louis chapter of the Council of Conservative Citizens–a group with indirect links to the KKK and other white supremacists organizations–you won’t be surprised to read that the judge questions decisions based on affirmative action, desegregation, as well as the 14th Amendment (the one granting equal justice to all under the Constitution. Stupid forefathers for ruining a good thing for the white boys, anyway.)

Leaving aside the fact that it’s OK for the boys to make sexual slurs and unwanted advances on women at work (because such is protected by the First Amendment you see), how do we react when we read about the tyranny of tolerance? How can a judge remain seated on the bench who believes that tolerance is a tyranny practiced on judges so that they can’t freely treat law as they would really prefer to treat law? The judge’s victims in his first chapter are women, but this same ‘tyranny of tolerance’ must also apply to blacks for their race and the Jewish and atheist, equally, for their beliefs.

From the excerpt, this book seems less an exposure of a ‘liberal’ (read that, fair and nondiscriminatory) judicial bias, and more a plaint by a man passed over, chastised, and fretting that he won’t have his say. Such deep seated bias cannot not impact on his judgments, leaving anything he’s ruled on open for both appeal and endless rounds of debate. He’s exposed the Missouri judicial system to ridicule and embarrassment. As noted at The Carpetbagger Report:

Naturally, lawyers in St. Louis have already noted that they could cite the book in demanding recusals on issues involving women, liberals, or the ACLU, because he’s made clear that he’s not impartial and has already made up his mind about these Americans he perceives as enemies.

Dierker, of course, disagrees, and argued, “Conservative judges are much more likely to know where their biases are and how to draw the line.”

Does that make any sense? A judge writes a book-length diatribe against Americans he doesn’t like, but can maintain his impartiality because he knows where his biases are? Will that inspire confidence in the courtroom?

I’m sure he’ll eventually have to leave the bench–I imagine he’s counting on it to make him more of a celebrity–but not before doing great damage to how the Missouri courts are perceived, both within and without the state. I’m also sure that he’ll enjoy a lucrative run with this book, be feted and celebrated in the grossest conservative circles, before ultimately spending the rest of his days, happily dispensing his own brand of squalid bias and hateful fear as yet another conservative talk show host on Fox.