Cultural Revolutions

Raoul Berger, R.I.P.

On September 23, we lost one of the great jurisprudential fighters for Truth, Justice, and the American Way. Berger, late Charles Warren Senior Fellow at Harvard University, former professor of law at the University of California's Boalt Hall, one-time second concertmaster for the Cincinnati Symphony Orchestra, died at the age of 99. Berger's career as a violinist preceded his life as a legal scholar, as did his days as a practicing lawyer and New Deal bureaucrat. While Raoul was a hero and a Dutch uncle to many of us judicial conservatives, he was a scourge to most of the legal academy. A lifetime Democrat whose hero was Thomas Jefferson, he claimed that he valued truth more than the results he desired, and he did more than any man to discredit the liberal activist jurisprudence of the Warren Court.

As a spate of obituaries noted, Berger was a darling of liberals when he provided, in his first two books, ammunition for the enemies of Richard Nixon. Through convincing research into materials from English and early American history, Berger showed that impeachable offenses did not have to be actual crimes but could include non-criminal abuse of the office. (A few of us would later cite him in hearings concerning President Clinton, a fact conveniently missed by the media in the encomiums to Berger.) Berger's Executive Privilege also cast doubt on Nixon's use of national security as a justification for not turning...

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