Of all the powers assigned to the President, perhaps none is more important than his ability to pick judges for the federal bench. After all, chief executives come and go, but many of their judicial appointees linger for years--even decades--after the President has left the White House.
And, in some cases, that means we're stuck with judges who betray their constructionist roots; engage in judicial activism on a grand scale, or issue rulings that are simply mind-boggling. President Eisenhower described his appointment of Earl Warren as Chief Justice of the Supreme Court as "one of the worst mistakes he ever made." George H.W. Bush (reportedly) had similar thoughts about David Souter, the supposed conservative who sided with the high court's liberal wing for most of his career.
But the damage doesn't end at the Supreme Court; there are plenty of bad judges at the appellate and district court levels, enjoying their lifetime appointments to the federal judiciary. And, if you need a current case-in-point, look no further than District Judge Robert Blackburn of Colorado. In a ruling issued Friday, Blackburn declared the federal "Stolen Valor" act to be unconstitutional because it violates free speech (emphasis ours). The law, which was signed into law in 2005, makes it a crime to wear, manufacture or claim unauthorized military decorations.
We've written extensively about the law in recent years. The Stolen Valor Act (sponsored by Democratic Congressman John Salazar of Colorado) was a direct response to literally hundreds of cases where individuals claimed--and often wore--military medals they never earned. Some of phonies never spent a day in the armed forces; others served, but never received the decorations they bragged about, and often displayed at patriotic celebrations and other events. More than a few of the military frauds used tales of "heroism" for financial gain as well.
In his decision, Judge Blackburn said (essentially) that Americans have the right to lie about serving in the armed forces and the military honors they received. In his ruling, the judge said the government did not show a "compelling reason" to limit that type of statement.
Let that sink in for a moment, and consider this: military decorations for valor recognize individual acts of courage that are extraordinarily rare, and often save lives, turn the tide of battle, or both. Over the course of our nation's history, less than 3,500 military personnel have been awarded the Congressional Medal of Honor. Many recipients are recognized posthumously; currently there are less than 100 living recipients of the MOH, and only one (Army Colonel Gordon Ray Roberts) is still on active duty.
Yet, it's perfectly acceptable for any American--whether they served or not--to create their own resume as a war hero, and wear decorations they never earned. Judge Blackburn made his ruling in a case involving someone who did just that: Rick Glen Strandlof, a Colorado man who claimed to be an ex-Marine who won the Silver Star and Purple Heart in Iraq. In reality, Strandlof never served. For his deceit, Strandlof was convicted under the Stolen Valor Act, the same law tossed out by Blackburn's decision.
An ACLU attorney (who filed an amicus brief in the case) said the Stolen Valor law is fatally flawed because it doesn't require prosecutors to show that anyone was injured or defamed by the lie. Obviously, the ACLU doesn't believe that phony claims of valor harm legitimate military heroes.
But then again, the organization never asked men like Leo Thorsness, Bud Day, or Pat Brady how it feels to be associated--even remotely--with the likes of Xavier Alvarez, Richard McClanahan, or Michael O'Brien. Alvarez, McClanahan and O'Brien all claimed to be recipients of the MOH; in fact Mr. O'Brien (a former state judge in Illinois) claimed he was awarded the decoration not once, but twice.
Sadly, they represent just the tip of the iceberg; over the past two decades, there has been a veritable "army" of wannabes who identified themselves as military heroes. And it's not just fraudulent claims about the MOH; when you factor in the phonies who say they've received the Distinguished Service Cross; the Navy Cross, the Air Force Cross and the Silver Star, there have been literally thousands of examples of Stolen Valor. Until the federal law was signed five years ago, it was left largely to the real medal recipients to police their own ranks and expose the frauds.
Based on Judge Blackburn's ruling, that may be the case again. According to his interpretation of the law, we all have a constitutional right to lie about serving in the military and the decorations we earned. By the way...did I mention that I am a four-time recipient of the MOH, and I have the Silver Star and 13 Purple Hearts to boot? Or that I was promoted to General of the Air Force below-the-zone? I'd love to post my decoration citations and relevant details of my remarkable career, but all of those assignments were top secret, you understand (nod, nod; wink, wink). Trust me.
Indeed, thanks to Blackburn's liberating decision, I can even expand my fraudulent resume. In addition to my military exploits, I can also report that I graduated from an Ivy League law school (at the age of 17), passed the bar on my first try, and was appointed to the federal bench by President George H.W. Bush. In my spare time, I attended medical school, so I'm also the only federal judge who's also a brain surgeon. And if I'm lying? Doesn't matter; just ask Judge Blackburn.
Of course, I'm acutely aware of various laws that make it a crime to practice law or medicine without a license, so I'll temper my activities in those areas. Clearly, there's a very good reason for those laws. Phony doctors and lawyers not only harm the public, they also cause damage to the legal and medical professions, making it more difficult for real attorneys and doctors to maintain the public's trust.
The same principle applies to military heroes--or so you'd think. Their reputation (and to a lesser degree, the reputation of all who served and earned decorations while in uniform) is harmed by those who manufacture tales of heroism and display medals they never earned. But no, that's a free speech right. Maybe I should send my "phony judge" resume and business card to Blackburn and ask if I'm still protected by the First Amendment. I'll let you know when I get that "cease-and-desist" letter from the federal court, or a visit from the FBI.
In case you're wondering, Judge Blackburn was appointed to the bench by President George W. Bush and (as far as I can tell) he never served in the military. Somehow, that's not surprising.