The Curious Case of Russ Feingold


The recent Senate confirmation hearings on John Roberts once again, and with perhaps more urgency, brought attention to Russ Feingold’s iconoclastic voting record. Feingold had previously voted to approve John Ashcroft as Attorney General in 2001. At that time, Feingold’s liberal supporters, though somewhat perturbed, conceded that this singular manifestation of his independent spirit had to be accepted if they were going to praise his defiance of not only the Democratic leadership, but of the entire somnolent political scene following 9/11: for Feingold was also, courageously, the only Senator to vote against the Patriot Act and he is someone who from the beginning has loudly denounced the war on Iraq.

The same sort of noise is now being made about his Roberts vote; and again his supporters point to his action as a sign of his independence from the Democrats, as proof of his sincerity, honesty and general upstanding character ­ qualities which are woefully lacking from politics. He is a man with integrity and moral fiber, an ardent foe of narrow ideology, a consensus-builder who however does not flinch from holding others to the same standard he holds himself to. He was the only Democrat not to vote against a bill that would have dismissed the Clinton impeachment charges; and he is the co-author ­ in conjunction with that noted lefty John McCain ­ of a lukewarm campaign finance reform bill.

I quite agree that in today’s political situation it would be hard to overstate the importance of his opposition to the Patriot Act. Imagine the amount of heat he must have taken from the Democratic brass, since his lone no-vote not only broke the paranoid unity of the 9/11 terror machine, but it brought into people’s consciousness the possibility of opposition, and with this possibility, the notion that perhaps the rest of the Democrats ­ not to speak of anyone who might claim to have a conscience ­ were frightened and spineless.

Moreover, Feingold’s outspokenness on many other issues is a refreshing change to the repeated banalities of most politicians, American or otherwise. What makes the Roberts vote somewhat more disturbing, however, is the possibility that it was a tactical move to further his chances at a presidential run in 2008. The numerous pro-Feingold websites out there are already buzzing about his potential candidacy, and have been hotly discussing the meaning of his vote; the bit that draws most attention in his speech in support of Roberts is this:

“History has shown that control of the White House, and with it the power to shape the courts, never stays for too long with one party. When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime.”

This is taken to be a clear sign that if Feingold were to become president, with a liberal agenda and Congress behind him, he would wish his conservative colleagues to remember his back-scratching, bi-partisan ways.

Feingold has made a career out of being a sort of Regular Joe Boy Scout in the sinister world of American politics, earnestly leading us across the moral street, and upholding personal virtue. His impeachment vote on the Clinton issue displays this moral uptightness. I have no problem with anyone wanting to impeach Clinton, or every other president for that matter; in fact, I think impeachment, prosecution and jail time should be prerequisites of the job. But it should not be on a trumped up charge of perjury in a matter of no national or even municipal importance. If you’re going to impeach Clinton for perjury in a ridiculous sex-scandal, then at least have the courage to impeach every single figure in every administration for perjury and worse! crimes. Bush could be tried in an international court for crimes against humanity ­ that’s something worthy of impeachment.

Unfortunately, Americans seem to be terribly literal-minded, and Feingold is no exception ­ at least in his public rhetoric. His speeches betray an ­ to me ­ incomprehensible faith in the stated order of things. His endorsement of Roberts provides some frightening examples. To wit:

” it will be difficult to overrule Roe or other important precedents while remaining true to his testimony about stability and settled law, including his statement that he agrees with the outcome in Griswold v. Connecticut. I know the American people will be watching him very closely on that question, and I personally will consider it a reversal of huge proportions, and a grave disappointment, if he ultimately does attempt to go down that road.”

I’m glad to know that Feingold would be disappointed with Roberts should he encourage attempts to overturn or undermine Roe v. Wade. But ‘disappointed’? I’m not sure I see why anyone should care whether Feingold ‘personally’ considers such behavior a reversal. The consequences of a Chief Justice facilitating such a reversal will be very real for many people and will go well beyond the sense of personal betrayal a senator might feel on the issue.

Or again: “Judge Roberts’s determination to be a humble and modest judge should lead him to reject efforts to undermine Congress’s power to address social and economic problems through national legislation. I view that as a significant commitment he has made to the Congress and to the country.” This is all fanciful supposition; there is no commitment of any kind here.

“His answers showed a gut-level understanding of the potential dangers of a court that operates entirely in secret, with no adversary process.” ‘Gut-level understanding’? You’re sending someone to the highest court in the country and you settle for gut-level understanding? Can we not have a man who’s thinking with his head instead of his intestines?

Senator Feingold is often ‘troubled’ about reticences on Roberts’ part, and about Roberts’ public record of conservatism; and the extent of what he’ll hazard about him is that he ‘seems’ like he would do good when Chief Justice. I’m not sure that ‘seems’ is quite enough. He calls Roberts ‘humble and modest’ several times in his speech; he says that, “I have talked to a number people who know John Roberts or to people who know people who know John Roberts. Those I have heard from directly or indirectly have seen him develop since 1985 into one of the foremost Supreme Court advocates in the nation, whose skills and judgment are respected by lawyers from across the ideological spectrum.”

He knows people who know people who think Roberts is a tall fellow? He’s putting this man on the Supreme Court because of hearsay? Well, I don’t know John Roberts, nor anyone else who knows him, and I can’t vouch for his moral character as an individual. I did however see him a bit on television, and ‘humble and modest’ is not quite how I would characterize him: he seemed like a clever enough chap who knows perfectly well that if he doesn’t say anything, it can’t be used against him in the court of public opinion; and moreover, that no one would have the guts to make him say anything.

If by ‘modesty’ Feingold means Roberts’s refusal ever to utter an opinion about Supreme Court decisions, usually hiding behind some formula such as: “I can’t comment on the particulars of the case, as I wasn’t there; but I have faith in the integrity of the Justices who oversaw the case”, then Feingold is either really really dumb, or is forcefully cultivating the image of a good chap who’s happy to see another good chap get a leg up. If my understanding is correct ­ and Feingold would know better than me, since he went to law school ­ part of a lawyer’s training is precisely to re-argue old cases, and to critique their judgements, which is what Roberts steadfastly refused to do, and what Feingold rightly upbraids his colleagues for not forcing him to do. (But why didn’t Feingold do it then?)

More of Feingold’s speech is in fact devoted to criticizing what he finds ‘troubling’ in Roberts’s answers than to praising his humility and modesty, a fact which makes his acceptance of him all the more troubling. “Judge Roberts did not expressly say how he would rule if asked to overturn Roe v. Wade Many of my misgivings about this nomination stem from Judge Roberts’s refusal to answer many of our reasonable questions. Not only that, he refused to acknowledge that many of the positions he took as a member of the Reagan Administration team were misguided or in some cases even flat-out wrong. I do not understand why the one person who cannot express an opinion on virtually anything the Supreme Court has done is the person whom the American public most needs to hear from. Judge Roberts did not answer questions that he could and should have and I think that is disrespectful of the Senate’s constitutional role. Also troubling was Judge Roberts’s approach to the memos he wrote as a young Reagan Administration lawyer, etc.”

What more do you need to know in order to know what type of candidate Roberts is? Feingold finds him not to be a narrow ideologue ­ although narrow ideologue is exactly what he is ­ yet he flays him repeatedly for not distancing himself from his damaging and excessively conservative opinions under the Reagan administration; and speaks of a desired transformation of the Roberts of 1985 into a wise one of 2005. This, in my view, is perhaps the only part of Roberts’s testimony that is worthy of some credit: though he wouldn’t answer most issue-oriented questions, he did not disavow his earlier actions, which allows one to see what type of a sinister conservative he is; he is not someone about whom any sane or rational person should have doubts.

Nevertheless, Feingold gives him the benefit of the doubt.

The puritanical sentimentality inherent in putting more importance on one’s personal virtue than on the strength and reason of one’s ideological commitment leads to a dangerous misunderstanding of the role of a public figure. I do not care, nor should anyone else, whether Bush is a coke-head, nor whether Clinton is a womanizer, nor whether either goes to church regularly. It is their statements and actions as political leaders that matter.

And this is the difference between the moral uprightness of Feingold and Ralph Nader, both of whom have something unpleasantly saintly about them. While Feingold cultivates a rhetoric that imputes great moral virtue to the political process, a moral virtue which he no doubt personally possesses, and which exposes the lack of virtue in others, Nader asks people to question their own motivations, and from this (naturally) to question the motivations of those who are meant to govern us.

The danger of Feingold’s cult of humility and modesty is not that he will do anything particularly objectionable himself, but that he may enjoy a bit too much being thought of as a clean-cut ordinary guy, doing an ordinary job ; and if the Democratic Party latches on to that image as an antidote to the obviously sham intellectual front they’ve been trying to present, then he will become a despicable tool in the resurrection of a moribund liberalism. Bush’s down-hominess was certainly the Republican antidote to Gore’s standoffishness.

I’m all for Feingold and his iconoclasm as long as those anti-Patriot Act votes come as thick as the Roberts votes do ­ thicker preferably. I just think that people should keep an eye on the repackaging process.

ANIS MEMON can be reached at:












We published an article entitled “A Saudiless Arabia” by Wayne Madsen dated October 22, 2002 (the “Article”), on the website of the Institute for the Advancement of Journalistic Clarity, CounterPunch, (the “Website”).

Although it was not our intention, counsel for Mohammed Hussein Al Amoudi has advised us the Article suggests, or could be read as suggesting, that Mr Al Amoudi has funded, supported, or is in some way associated with, the terrorist activities of Osama bin Laden and the Al Qaeda terrorist network.

We do not have any evidence connecting Mr Al Amoudi with terrorism.

As a result of an exchange of communications with Mr Al Amoudi’s lawyers, we have removed the Article from the Website.

We are pleased to clarify the position.

August 17, 2005