Here’s a list of possible picks. Unless Scalia surprises and retires during Obama’s tenure, I don’t think the court will likely change much. (via Tapped)
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Paul in Boca
What about Hillary?
Vince Foster for Chef Just-Us
O/T: Breaking News re. White House Puppy Appointment
The Other Steve
If William Ayers and Hugo Chavez isn’t on the short list, I’m going to be seriously pissed.
@Laura W: ooops. Didn’t realize that was yesterday’s news. Surely it’s posted in one of the threads here. Oh well…it was fresh news to me.
Both Kennedy and Scalia are 72. And Scalia is a fat angry Italian SOB, which rarely translates to extended life expectancy.
In eight years will both these guys still be around? Admittedly Alito and Roberts aren’t going anywhere, but I think we could see a shift in future years. And, if nothing else, the solidification or even liberalization of the courts by the addition of a few more Ginsburg-esque judges will save us some heat in the future.
I hope he doesn’t nominate Cass Sunstein.
Here’s hoping he nominates people who are as liberal as Alito, Roberts, Scalia, and Thomas are (far) right.
IMHO if the Republicans filibuster, the Dems should just get rid of the filibuster, though I doubt they’d be willing to do that.
The fun part is not to discuss who he might pick, but which ones would drive the freepers insane. Someone relatively young, brilliant, and way out there on the left.
For me, Sotamayor is the heir-apparent. Just because there is now a conservative core in the Court, it doesn’t mean that you have to select the most liberal of the choices available to you.
I’m not pumped about Kagan because (like Harriet Meyers) she never sat on the bench. She is also too much of an intellectual-type, but that’s just my opinion.
Scalia won’t make it the full 8 (if, indeed there is a full 8) since his heart isn’t in it anymore (see the 60 minutes interview with him). 4, maybe.
Why would you possibly propose the Dems try to get rid of the filibuster? It’s a very important tool for the minority party. At some point in the future, the Dems will be the minority party. We all hope this is far into the future, yes, but one never knows.
Michael Moore for Supreme Court Justice.
My nightly prayer includes Scalia. I pray for him to go duck hunting with Cheney.
Not sho about dis. He’s such a partisan hack, such a Republican blowhard, liberal-HATING prick bastard that I’m guessing he wont resign if he knows it’ll turn the court progressive. IOW, he’d rather die in court than resign and allow some liberal fag-loving abortion milkshake-drinking liberal commie pinko liberal take his spot and allow Gitmo peeps to have a day in court.
Ditto for Thomas.
Because no day is complete without a bizarre Sarah Palin story, I give you this:
The "breaking news" banners that they had up were priceless; things like "Gov. Palin apparently oblivious to turkey carnage over her shoulder".
Dennis - SGMM
"If a Flying Saucer Lands on the White House Lawn, Who Would Obama Pick to Speak with the Aliens?"
Here’s a list…
C’mon. Did anyone list Eric Holder as a front runner for AG? There must be at least one-thousand people who have the temperment, background, and stature to be considered for the Supreme Court by the Obama administration. I’m guessing that, if the need for a choice arises, it will be someone unfamiliar to most of us.
John Kyl of Arizona has already said that he’ll filibuster any Supreme Court nominee he finds too extreme, despite the fact that he was one of the loudest WATBs when the Dems threatened to do that. He was also very much in favor of the nuclear option.
As to why dumping the filibuster might be a good idea, it’s the sort of thing that really gets in the way of progressive legislation. It hurts us far more often than it helps us. The point about being in the minority again someday is a good one, but I think it could wind up a net gain all the same.
If you don’t want to completely dump it, though, what you can do is make the filibuster painful. Make the Senators actually stand up there and screech for days on end instead of playing this "I plan to filibuster so get your cloture vote ready" bullshit.
I think you misunderstand Scalia. He is an originalist, who purportedly reads nothing into the Constitution; just what is there, and what the meanings of the words were at the founding. This almost invariably leads to a result that disagrees with liberals (myself included); but people forget that he is the most stringent supporter of upholding a criminal’s Constitutional rights to an attorney, confront his accuser, etc. Which would certainly put him with the more liberal judges in criminal cases.
He is probably the most intelligent member of the Court, and is without question the most brilliant writer. I know I’ll get flak for this here, but I think people need to understand why he rules the way he does.
Dennis - SGMM
I never understood Reid’s tactical or strategic purpose in accepting the statement of a filibuster in place of the real thing. If Sen. Kyl had to round up enough of his like-mindless friends to actually hold the Senate floor 24/7 he might be a little less inclined to invoke a filibuster. As it stands, the actual filibuster has become a quaint antiquity – like the Declaration of War.
Sotomayor. who’s going to oppose her? nobody.
otherwise that list is a bit silly, imo. no one is going to go from district judge to the SCt and no academic is going to go there straightaway, either.
If that’s your criterion, then Erwin Chemerinsky, who until recently taught at Duke and will be the first dean of the law school at UC Irvine when it opens in the fall of 2009, is your guy. It would be worth it just to see Hewitt’s head explode. And he would probably be good.
@Tymannosourus: i agree, somewhat. i wouldn’t call Scalia a brilliant writer; i’d call him a brilliant rhetorician. and IIRC his originalism has been pretty much debunked except when we’re discussing things like the Sixth Amendment (in other words, when the subject is issues integral to the legal universe).
@Dennis – SGMM:
Did anyone list Eric Holder as a front runner for AG?
Actually, yes. The American Lawyer had him on the cover in, IIRC, July.
I’d prefer Mary Jo White, but Holder will do fine.
I hadn’t really been thinking about Koh, but on reflection, that would be a brilliant choice.
And if Obama is really a Chicago pol, then if Kyl fillibusters, watch Federal money for Arizona dry up completely. Payback is part of the essence of Chicago politics.
I just had the same thought! However, the ABA Journal has reported that Scalia went hunting with a Personal Injury lawyer, so anything can happen. Wouldn’t that be the ultimate irony, Scalia getting taken out by a trial lawyer, one of the right’s favorite bogeymen?
As for the list, I find Judge Castillo an interesting choice. I just had a case in front of him, and he definitely is well-prepared and knows his stuff. I do not recall him issuing any opinions of note while he has been on the bench, so I don’t know what his views are on the large issues that would face the Supreme Court in the years to come.
One person who for a long time I wanted to see on the Supreme Court was Judge Richard Posner of the Seventh Circuit. Judge Posner is one of the most prolific writers on the broadest range of topics ever. I have enjoyed reading his opinions for years, even when one of those opinions went against one of my clients. He is smarter than Scalia and able to be provacative without Scalia’s mean and petty sarcasm. Of course, no one really ever knows which way he is going to rule, which is probably why to my knowledge he has never even been mentioned as a possible candidate. I changed my mind on nominating him to the Supreme Court after he released his book on the war on terror and essentially came out in support of Bush’s position. I found his reasoning weak and infused with the same type of irrational fear that is the norm of the lesser "intellectual" types on the right.
Other than his phony "torture isn’t punishment" B.S., I honestly can’t think of where it’s been "debunked." Little help.
It’s a question of who wants to pull the trigger. Dumping the filibuster makes each Senator individually less powerful. They just become a smaller version of the House, with the Majority Leader and Whip wielding substantially more power.
No senator on either side of the aisle – and there will inevitably be Senators, like Dodd during FISA, who want to filibuster against their own party – wants to give up that power. The fact that Frist even came close just demonstrates how delusional the GOP had become.
Maybe that is part of the reason that Obama is ignoring what McCain did in the general election. It would be hard for Kyl to filibuster any Supreme Court nominees if the other senator from Arizona, and the Republican party’s most recent presidential nominee, continues with the "Gang of Twelve" approach to judicial nominations.
Dennis - SGMM
Ya’ got me! Although I read all publications (Ahem) that one I missed. I guess that speculating about Obama appointments is what we do in the interregnum between the Bush administration and that of Obama.
Really? Could you explain his decision in Bush v. Gore for me then? Especially the parts that directly contradict his own past rulings regarding stare decisis, the 9th and 10th amendments, and the Constitution’s explicit phrasing on separation of powers and the procedures for contested elections?
Thanks. I know about Chemerinsky. He’s a good guy.
@Zinfab – exactly right. I’d wager Scalia can’t make it 8 years.
I think there’s a decent chance that Kennedy retires to ensure that he’s not replaced by a hard-right justice in the event that a Republican follows Obama into the White House. I’m guessing none of these guys want to end up like JP Stevens, where everyone in the country is just waiting for them to die.
I’ve been saying for sometime – Obama gets 2 nominees right away (Ginsberg and Stevens) a probable 3rd and given the relative ages of the rest of the court 4 or even 5 are not out of the question.
Nope, I meant to mention that one along with the torture stuff and forgot… but do a few decisions that swing in the repubs favor mean that he’s a "liberal hating" right wing fascist? I don’t think so, and that was my point.
So often there is a simplistic view of the reasoning that judges will bring to their decisions – because it’s so easy to characterise this judge as a "liberal" and that one as a "conservative".
This simplistic view might work for some judges – you can pretty much always guess what side of any decision Clarence Thomas is going to be on – and for some kinds of cases. However, at the level of the US Supreme Court and the Australian High Court, the sheer range of cases that they hear (property, tax, industrial relations, immigration cases etc) means that it’s almost impossible to always define the "liberal" and the "conservative" side of a case…
In Australia for a couple of years in the mid 2000s, our High Court bench contained Michael Kirby, who is a gay, "liberal" judge, and Ian Callinan, who was a classic, black letter law conservative.
The reality was that often these two, whose views were supposed to be so opposed to each other, ended up agreeing on the outcome (often as the minority against the rest of the court), even though they often reached their respective decisions for entirely different (and often quite conflicting) reasons.
The other issue is that the track record of a lawyer before they get onto the highest court in the land doesn’t always tell you what they will do in the 20 years they are actually sitting in the court.
It cuts both ways… Again in Australia, judges like William Deane and Anthony Mason were both appointed to our High Court with records as very conservative lawyers. They both ended up ended up being major voices in a string of so called "liberal activist" decisions by the court, including being in the majority in the Mabo case which recognised aboriginal native title in Australia.
I’m down with Tymannosourus. While Thomas and Roberts are hacks, Scalia actually has core beliefs he more or less sticks to. They just happen to be the opposite of most liberals’.
Appointing new justices to the Supreme Court isn’t just about the numerical balance. Roberts, Alito and Thomas are the youngest members of the Court, and Roberts in particular is driving it fast towards the right. We need some vigorous new voices opposing them against to drag it back towards the center.
He is probably the most intelligent member of the Court, and is without question the most brilliant writer.
He is neither of those things.
He’s an entertaining writer, which makes him seem "brilliant" when in fact he’s often times writing things that have no business in a SCOUTUS opinion. Honestly I think a lot of lawyers and law students are so bored by most opinions that they over-rate Scalia mearly because he is entertaining.
As for intelligence well have you ever seen the man speak or taken in one of his interviews? He spoke at my law school some years ago
and his behavior during the question and answer portion of the engagement has stayed with me. A student rose and politely asked a legitimate question along the lines of "How do you reconcile your personal belief in Strict Constructionism interpretation of the Constitution with objectively correct outcomes from decisions like Brown v. The Board of Education."
"Even a stopped clock is right twice a day. Next question."
That was it. He had nothing more to say. Scalia is a vocal and prominent strict constructionist. Whether or not he actually applies this principle broadly or is politically selective with it’s application is a topic for another day. Scalia is an ardent strict constructionist and he professes his devotion to this ideology whenever he is given an opportunity. For him to completely dismiss a legitimate question about the legitimacy of such a view point in light of cases like Brown is despicable. It struck me as an amazingly snide and dismissive answer and it also made me question whether Scalia had ever grappled with this dichotomy himself. If he wasn’t self-reflective enough to see this conflict and to have anything resembling an answer it struck me that he was not a serious man, not a serious lawyer and not a serious Justice.
While I had always opposed Scalia on ideological and philosophical grounds I had always imagined that he was a serious intellectual. Instead he had, in my mind, been exposed as a fraud. It was an Emperor has no clothes moment for me.
more here: http://steampoweredopinions.blogspot.com/2008/04/justice-has-no-robes.html
What is all this about filibustering judicial appointments?
The GOP wouldn’t do this. Such a practice is vile and many have said so.
As a matter of fact, I seem to remember hearing that filibustering judges was, in fact, satanic.
So they would not do this. Surely.
Of course, none of this means that Scalia never behaves like a partisan arsehole …
Grumpy Code Monkey
This. Make them actually go through with it. You wanna play Jimmy Stewart for a couple of days, fine, and when you finally pass out from the lack of oxygen we’ll get back to work.
Do you think the Dems will realize they’re actually the majority party this session?
Did I say that? No, I didn’t.
I’m disagreeing with your acceptance of his claim that he’s just an originalist, simply reading the exact words of the constitution and applying them to present day circumstances without an agenda. That’s a pernicious conservative myth.
There’s no such thing as "freedom of contract" or "executive privilege" in the Constitution, no statement that corporations should be legally considered an individual, etc., yet pseduo "originalists" like Scalia can always seem to find them. There are explicit bars to unwarranted searches and seizures, specific points about the right to trial by jury, etc. etc., and pseudo "originalists" like Scalia always seem to miss them.
Originalism is a bullshit argument, right up there with intelligent design in terms of intellectual masturbation meant to disguise a political agenda. If you accept it, you’re fooling yourself.
Again, Bush v. Gore. Scalia had made a career out of insisting (1) the Court needed to stick to its precedents through rigid adherence to stare decisis, and (2) the Court had no role in state affairs, especially electoral matters. And then Bush v. Gore came around and he said, oh, well, never mind all that.
He sticks to his core beliefs when it’s convenient, nothing more.
Scalia actually has core beliefs he more or less sticks to.
No. He doesn’t. It’s time smart liberals stop treating Scalia as though he as member of the conservative intelligentsia and a scrupled justice who should be praised while we disagree with him. He’s a right-wing tool, no more and no less.
example 1: detainee rights, read this and tell me he’s sticking to core values.
STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?
SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.
STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–
SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?
He’s playing word games about torture because he’s an unprincipled prick.
example 2: His deference to state supervision of elections in order to hold up Indiana’s obviously phony Voter ID law, which directly contradicts his position in Bush v. Gore. He’ll say whatever he wants and come to whatever conclusion is convenient.
He voted against restoration of Habeas Corpus just this past fall! Wake up folks.
Easy Tiger, I know you didn’t say that, Punchy did, and his opinion is pretty widespread among liberals, so that’s what I was arguing against.
I said it before, Scalia is one of the most ardent defenders of an accused’s rights, and I’m not sure where you are getting your info, but he has done a fantastic job of maintaing the integrity of the 4th, 5th, and 6th.
I’m not over-rating him for his entertainment value (which you are certainly right, makes his opinions stand out). But I think that you might be dismissing his brilliance too easily. Anyone who pioneers a SC judicial movement for 20+ years, no matter what you think of it, deserves a ton more credit than you are giving him.
Are you insane? He’s come out for removing habeus corpus! He’s insisted that Guantanamo detainees have no right to a trial!
I also conceded above before you chimed in that his positions on torture and Bush v. Gore are B.S., and criticism there is warranted.
My point on all of this is that liberals dismiss him as a "right wing hack" (see Punchy’s comment above) without actually reading him. He’s an easy villain, but he has shaped the SC more than most judges in the last 30 years, and anyone who does that is no idiot.
@TR: Scalia is a brilliant, yet almost completely unprincipled man. Way, way overrated, even if he has written some brilliant opinions.
‘Originalism’ is clearly debunked – it is an intellectual dead end and clearly runs against the dominant legal philosophies of the founders. Scalia abandoned it as a rationalization and philosophy for his opinions years ago, and now relies on the much more logical and defensible approach of elucidating the plain meaning of text before applying the canons of statutory interpretation.
The ‘originalism’ wheeze is trotted out for public consumption – in order to gull to uninformed about the profound revisionism and activism that gets cloaked in the principles of conservatism.
Furthermore, Bush v. Gore was a crime, and Scalia ought to be impeached for it.
"Right wing hack" and "idiot" are not synonyms. He’s incredibly smart and shrewd, which is why he’s apparently able to pull the wool over your eyes.
Jesus, even Stephen Calabresi of the Federalist Society has criticized Scalia for his inconsistencies on the 5th and 6th.
The justice that is truly closest to Originalism (pretending for a moment that "originalism" is an actual workable ideology) would be Thomas.
To my knowledge, Thomas has taken the reliably "originalist" position (See Ashcroft v. Raich) in nearly every case, with the glaring exceptions of Bush v. Gore and the Affirmative Action Cases (show me where the phrase "color blind" appears in the 14th amendment) .
Scalia, Roberts and Alito are all republican hacks, with the only difference being the tone of their writing.
Geez, last time I ever tell people here to put the brakes on some left wing hate. I can’t type fast enough.
"Left-wing hate." Right, we’re all suffering from Scalia Derangement Syndrome. All the glaring inconsistencies in his decisions, all the criticisms he’s gotten — from Calabresi, from the ACU, from elsewhere on the right — that’s all left-wing paranoia.
You and Scalia see the world clearly, and the rest of us are hacks. Gotcha.
I have not (correction added) kept up with this issue, but was that really the essence of his argument? If so, it is a profoundly innovative and activist argument to make. Maybe he is reaching back into his originalism black box to come up with something like that.
Actually, why do we need replacement Justices? Just let the Supreme Court winnow down until there’s no one left, and let that branch of gov’t wither away. After all, all power rests with the Executive… oh, wait, the Executive’s not Republican anymore. OHNOES!
The Moar You Know
@Tymannosourus: I would hope not. Forcing people to intelligently defend their assertions is good for them and their arguments.
That’s one of the reasons, incidentally, that I’m disappointed that the right fielded such a weak-ass candidate this cycle. I’d hoped to really get some good arguments during the campaigns to discredit the "easy-answers bullshit" the GOP side has been peddling since 1980, and sadly, America has not had those discussions yet.
May his cannoli find asylum in his arteries.
First, it’s very anti-democratic. The Senate is already an institution where a pretty small fraction of the populace is extremely over-represented. With the filibuster, it’s much worse.
Second, some people have made the argument that if you look at the use of the filibuster throughout history, there’s a definitely bias towards its use for anti-progressive ends.
Third, given current demographic trends, it’s not clear when the Dems are going to be a minority.
Agreed. Yet more empirical evidence that—sadly—the Dems are a bunch of pussies.
Scalia thinks that you have no right to privacy and that it’s OK for states to put you in jail for getting a blowjob from the wrong person (cf dissenting opinion Lawrence v. Texas, 2003). ‘Nuf said.
Originalism is a bankrupt philosophy. The Founders and those writing at the Reconstruction clearly intended the Constitution to elucidate broad principles, not narrow rules like statutes.
Thus, originalism is actually anti-originalism, because it contradicts the obvious meta-intent of the Founders.
Ronald Dworkin in particular pushes this line, which I find thoroughly convincing.
In particular, Brown v. Board is the ultimate test of originalism. If you really believed originalism, you would say that Brown was wrongly decided, because people who wrote the Reconstruction amendments would have never seen ahead to the case in Brown. (Indeed, there was much less public schooling back then.) But IIRC even Scalia admits Brown was correctly decided.
Besides which, IIRC there are many cases where Scalia’s vote goes against his so-called judicial philosophy.
So he’s full of it.
Wow, fancy that—another right-wing "genius" turns out to be just another…right-winger.
Clearly he dismissed it because it proves that his "philosophy" is fraudulent.
I don’t know that this is correct. If it were so clear, I doubt that originalism would have gained so much traction. I certainly agree that the Constitution is a "living document," but I don’t think that that proposition is as clear cut as you say it is.
There are a lot of strong arguments (from Scalia and others) that the framers built in the possibility for changes in the Constitution with the use of Amendments. He would say that what they did not intend is the inference of rights like "substantive due process" and "the right to privacy." Again, this isn’t what I believe, but I’m just trying to explain it.
Scalia doesn’t actually think that bullshit. He’s just paid very well to rule on it that way. Now that Obama is in the White House, expect Scalia to discover amazing new legal reasons to be a proud defender of privacy rights of billionaires and multi-national corporations. You only have to look as far as Ledbetter to see what he thinks of privacy rights. Privacy for me, but not for thee.
One faint glimmering dream I’ve got is for an Obama Administration to actively investigate some of the backroom bullshit that goes on with Republican Judges. I’d love to see him drop the hammer on all the corruption and corporate backscratching. Never going to happen, but I’m allowed to dream.
This is inaccurate. It’s his point that it is not his providence as a SC justice to tell state legislatures what laws to frame. It is only his role as a SC justice to tell them when they run a fowl of the US Constituion.
And he’s right.
Remember, all, that originalism doesn’t just mean that you ONLY look at the Const. It means that you interpret words the way the founders would have (see Scalia’s concurrance in Crawford v. Washington). That also means that you adopt the common law principles of contract law that you are talking about.
That’s been my impression. Scalia seems to decide on a preferred outcome, then works backwards to justify it from a presumed legal philosophy. But from 20,000 feet, it all looks like "whatever the hell I want".
Yes, it’s clear. It’s clear from the language the Constitution is written in, which is the language of broad principles that are to be interpreted. It’s clear from the history of constitutional interpretation. It’s clear from the behavior of the Founders themselves (such as burning their notes after some of the meetings).
Uh huh. And the usefulness of "originalism" to a certain right-wing political faction has nothing to do with it.
You’re absolutely right. I think that this is part of the insistence that things fall neatly within a political party affiliation. Things like global warming, which only have a basis in science become politicized for some reason (it should only be true or false as a matter of fact, not a matter of dem. or rep.), it’s the same thing with judges… there is no need to ascribe a political leaning to all of them.
Uh, care to explain, then, how he comes to the conclusion that Brown v. Board was correctly decided?
Tara the antisocial social worker
Scalia’s dissent on "Lawrence vs. Texas" wasn’t even a recognizable legal argument – it was a screed about the scary Gay Agenda. Seriously.
I don’t know if he is a "right winger" as everyone here understands the term. I said that this one particular work was based upon faulty reasoning that you would find in the right wing "intelligensia." Posner’s primary area of expertise is law and economics, and I don’t know how much that area is applicable to national security and bill of rights issues. Thinking further, I do not recall Posner authoring any opinions regarding major criminal law issues, because I do not think that is where his interest lies. Also, if I remember correctly, his writings on sex tend to be more liberal than would those of a true right-winger, like Scalia.
My main point was that Posner has never been mentioned as a potential nominee because neither the Democrats nor the Republicans are certain what they are going to get.
That’s a plausible claim. In the case of the conservatives on the USSC, however, it’s fatuous.
"It’s clear because I said so" isn’t the sort of compelling evidence I was thinking of.
And "burning notes after some of their meetings…" doesn’t really scream "this intended to be a living document" does it? Where is your "clear" evidence that the Const. was intended to change through judicial interpretation based on social norms and values?
Only if someone is too dim to understand that someone can be a right-winger on economic issues without being a right-winger on social issues.
OK, though note that much/most of "law and economics" is thoroughly intellectually bankrupt. Especially that part which relies on the Coase Theorem, which itself is thoroughly intellectually bankrupt.
What’s with this "he really sticks to his principles except when he doesn’t, and you have to admire that" shtick?
"Oh yeah, Bush v Gore, was that important in any way?"
If Scalia follows his "principles" except when they interfere with him being a right-wing hack, then I think we have pretty strong evidence that he is first and foremost a right-wing hack.
Balloon Juice: Come for the cute puppies, stay for the legal arguments.
I love pointless punditry. Between now and Obama’s inauguration, these guys will have speculated on every possible appointment down to the sub-cabinet level.
I also love how we are supposed to calibrate these potential nominations based on the enthusiasm of "progressives." Who gives a rats’ ass about what might pass their sniff test?
Actually, I enjoy the way that Justice Souter often points out the narrowness and illogic of Scalia’s opinions.
And I think that most people understand where Scalia is coming from, but his view of originalism is arbitrary and nonsensical. There is nothing in the Constitution itself mandating "strict constructionism" (actually there is not much even laying out the role of the Court), and documents such as the Federalist Papers cleary show the founders considering and debating their views of the function of government.
And if you really wanted to play the originalist game, you would have to ignore any judicial opinion authored after, say, 1826 (the date of the deaths of Jefferson and Adams).
Tymannosourus and company, I disagree about Scalia’s writing being brilliant. Or rather, I do now.
The decisions for which he’s been the principle author – majority or dissent – of the last three to four years have been poorly written. A decade ago his writing contained logic chains and solid precedence. Recently there have been more than a few cases of… "because I said so" writing is the easiest way I can think of to consider it. I first really noticed it when reading his dissent in Boumedine, but on looking further it really seemed to start showing up shortly after Bush’s second term began. I have also heard from people attending his presentations that he’s done the same in those cases as well. I do not know the reason, I only know that comparing the man now to the man of a decade ago… he’s far less intellectually imposing today.
I haven’t read his take on Brown v. Board, but I guarantee you that it had nothing to do with substantive due process. Rather, it would have had to do with Equal Protection or the 14th amend. Due Process clause, both of which are plain meaning clauses in the Constitution, not judicially created doctrines like substantive due process. Equal Protection and 14th amend. can lead (without contradicting originalism, mind you) to Scalia believing that Brown v. Board was correctly decided.
Uh, why don’t you actually read the Constitution, then actually read some statutes, then get back to me?
Or read scholars who make the same point that I do, with actual footnotes and stuff.
I guess I have to spell it out for you, slowly, so you’ll understand.
Originalism is built on the supposed original intent of the Framers.
Without records of what the Framers said, it becomes harder or impossible to divine their original intent.
I have a proposal: We have a problem in that the corporatists on the Court are much younger than the good guys and, like JC indicated, are not expected to voluntarily retire. Well why not impeach some of them? The Bush v. Gore decision was so flawed that a 1st-year law student can pick out the errors (I am a legal analyst for a law firm and well know it). The question is thus raised: Was the Fascist 5 in error, or did they deliberately corrupt the deliberative process to produce a result aimed at installing the Bush regime in power? If the former: they are incompetent; if the latter: they are treasonous. Either way there are good grounds for impeachment of Scalia, Thomas and Kennedy. Why not do it?
Y’all need to spend a bit of time with Blackstone. What you refer to as "freedom of contract" and the legal personality of juridical entities were so clearly established in the English common law that the framers would not have seen any need to explicitly deal with them in the Constitution. And executive privilege flows rather easily from notions of sovereign immunity that would have been familiar to the framers.
Anyone who cites "the homosexual agenda" in a legal ruling (see Lawrence v. Texas) is not brilliant in any sense of the term that I understand. The guy is not defensible.
Getting back to the article, though: why are Deval Patrick and Jennifer Granholm on that list? Why are politicians even being talked about for these positions? Point A), if republicans put a politician on the SC, I’d be apoplectic, and B) being on the SCOTUS requires years of judicial experience and/or legal scholarship. Even Harriet fucking Miers was at least a lawyer; Governor Patrick isn’t even on the bar. What am I missing here?
This may be entirely true, but I know that when I’m 70+, the only thing that will be imposing about me is my love for meds, booze and my misunderstanding of kids these days.
I never said it did.
If you’re arguing that a consistent application of "originalism" would have Brown correctly decided (based on an "originalist" interpretation of the Equal Protection clause), you simply don’t know what you’re talking about.
I’d suggest you stop now before you further embarass yourself.
There are many examples, but Heller proved what a complete fraud Scalia is. They made law, and Stevens and Breyer then proceeded to slap him over the head with an originalist dissent.
Ever heard of Earl Warren?
Whatever, dude, I’m done with you. I tried having a reasonable, non-personal argument, but as soon as you are backed into a corner, you resort to cheap little attacks.
There is no left wing hate re: Scalia. The guy is a hack, and an inconsistent one at that. The issue I have with Scalia is that the judicial philosophy that he claims he adheres to is a crock of sh!t and anyone who has really read his decisions knows it. First of all, originalism as it pertains to the Constitution is a fraud. The Constitution basically states that directly in the 9th amendment and 10th amendments respectively. Second, he departs from his philosophy when he sees fit. He’s basically a very right wing conservative who believes in the Unitary Executive to the detriment of the Constitution if necessary.
The Constitution was NEVER meant to limit the rights of U.S. citizens only to those directly enumerated – only to spell out those which were the most basic foundational rights of our Republic. It was only meant to limit the power of the State, not the rights of the individual. The enumeration of any rights shall not be construed to limit individuals to those specifically enumerated and the people retain ALL rights against the State regardless if such rights are enumerated or not. The Founding Fathers were smart enough to know that if any rights were enumerated, idiots like Scalia would try to limit the people to those rights alone, and so they included a failsafe stating that rights were not limited only to those enumerated. Yet, amazingly, people who call themselves ‘Originalists’ or "Strict Constructionists" always seem to skip over the 9th amendment to limit the rights of the individual to only those enumerated in the Constitution. That’s not original, that’s activist and therefore Scalia is blowing smoke out of his rather large, ignorant ass.
The most beautiful thing about the Constitution, to me, is that it is not a stand alone document and should never to interpreted as such. The Declaration of Independence, our TRUE founding document, states that man has a right to "Life, liberty and the pursuit of happiness" and while the Constitution does enumerate certain rights, the words in the Declaration coupled with the 9th amendment is what shows the true intent of the founders as far as individual rights are concerned. We, as individuals, have the right to do any damn thing we want to as long as it doesn’t interfere with the next person’s rights to "life, liberty, and the pursuit of happiness." and the gov’t, SC included, has no business putting or recognizing as just, arbitrary limits on such rights. THAT is the true beauty of our founding, yet Originalists and Constructionists miss the forest for the trees. Scalia is one of them.
You may have not gotten the memo:
Originalism allows for amending the constitution. Which would include….. wait for it….. the 14th.
This is some funny shit. For a second I thought you were serious, then I realized your mastery of the subtle snark. Well done.
Quaker in a Basement
I’m hoping he appoints Clinton to the court.
No, no, not either of those two. George!
Roberts might leave.
I know that he’s relatively young, and he’s the chief justice, etc, etc.
But now that Ginsberg and Stevens can resign under a Dem President, any fantasies Roberts might have had of a legacy of presiding over a historical conservative Supreme Court are pretty much quashed.
Instead, the Roberts Supreme Court could be remembered in years future for the decisions that supported an Obama Administration and Democratic Majorities as they rolled back 28 years of anti-Government/pro-Corporate Reaganism.
Now … imagine you’re John Roberts. Do you hang around for this … or do you go back and step into another 7-figure corporate law job?
Let’s make the replacements for Ginsberg and Stevens as "in your face" as Scalia. I’m betting Roberts doesn’t have the stomach for a strong intellectual challenge from the left on a regular basis.
I belive that you are absolutely correct, Adrianne. If people on this thread had looked at my original posts, they would see that I don’t agree with Scalia’s originalism, just that it lowers the debate (see "liberal’s posts) when people simply dismiss him as a hack, when they should be making arguments founded in fact and reason, like yours.
The corporation in its modern form (which a lot of the discussion you referred to alluded to) certainly did not exist at the time of Blackstone or the Founders.
Deval Patrick was a very successful corporate attorney – got Coca Cola and Ameriquest out of some serious jams, and got very generously compensated for the trouble. Before that he rose to prominance in the Clinton DOJ.
But I would not consider him a serious candidate for USSC.
While "Justice" Scalia is living proof that only the good die young, I’m still holding out hope that he’ll get hit by a meteor.
An errant slip in the bathtub would be ok. But the meteor thing has something vaguely Biblical about it that would distress the wingnuts – and that would be a pleasant result.
It’s pretty amusing to get this loftly pseudo-intellectualism from someone who knows as little on these subjects as you do.
God damn, I sincerly hope this is a joke.
And indeed the record even shows men who signed it disagreeing amongst themselves about what the words meant. I don’t understand why people talk as if disagreements and vigorous debates regarding interpretation are a recent phenomenon. There have been different interpretations as long as the document has been in existence. During Washington’s presidency, Hamilton and Jefferson had famous disagreements regarding the role and purpose of the federal government. There has never been a single, original, interpretation because the writers and signers could never agree to one. So, the term "Originalist" really has no true meaning at all.
The problem is that the founders did not have a monolithic meaning as to each and every word in the Constitution. The Federalist Papers are obviously a great source for what the main proponents of the Constitution wanted the Constitution to mean, but the Federalist Papers do not address every provision, and of course they make no mention of the Bill of Rights except to say that one was not needed, which it turned out people disagreed with.
Take for example the phrase "regulate Commerce … among the several States." The issue of what is "Commerce" was of major importance during the Rehnquist Court, especially in the Violence Against Women Act and the act banning the possession of handguns near schools. The Supreme Court struck down both of those acts because they did not involve Commerce; I do not recall Scalia or anyone else saying that we should look to what the founders meant by Commerce in the year 1789. The Supreme Court looked at what Commerce meant at the time those acts were passed and signed into law.
The scales fell from my eyes regarding Scalia when I read his opinion in Burnham v. Superior Court of California, a case involving personal jurisdiction. The plaintiff, a New Jersey resident, was served with divorce papers by his estranged wife in California while making a brief stop to visit his children. The plaintiff argued that his contacts were too insubstantial to subject him to jurisdiction in California. In rejecting the plaintiff’s argument, Scalia said that under traditional notions of fair play in place at the time the 14th Amendment was ratified, serve on process on the person while in the state was sufficient to subject that person to personal jurisdiction. More troubling, however, was his statement that traditional notions of "fair play" and "substantial justice" meant what they were when the 14th Amendment was passed, and could not take into account any changes since that time to the present.
In continuing to follow Scalia over the years, I have come to the conclusion that he is an intolerant and reactionary Catholic Italian. Having grown up around a lot of such people, I can tell you that this is not a good thing.
And wtf is going on here, a Federalist Society misinformation campaign? ‘Freedom of Contract’ doctrines were a late 19th century innovation that was developed in order to suppress labor unions. Even modern conservatives consider the whole chain of cases using substantive due process in this way to be inexcusable activism. Rather, they usually argue that no substantive due process rights exist (thus there is no real right to privacy) and thereby maintain to consistency and intellectual honesty.
I had to put up with Todd Zywicki, of all people, as a prof in law school, and even he was too principled and honest to try defending ‘originalism’ or ‘freedom to contract’ in the classroom.
I have nothing else to add except to say that if this is going to happen, it’s going to very, very interesting when it does happen.
Are you really this dense, in real life, or some kind of troll?
It should have been obvious from the outset of my claims re originalism and Brown that the entire question revolves around whether a consistent originalist interpretation of the Equal Protection clause itself would show Brown v. Board to be correctly decided. In this case, we’re not talking about originalism deriving a claim from the Founding, but from the Reconstruction.
In this case, if you look at history, there’s no evidence concerning the Reconstruction that a consistent, well-posed "originalist" doctrine could use to conclude that Brown was correctly decided.
So in the interests of "elevating the debate," can Tymannosourus please explain what motivates Scalia when his rulings are inconsistent with his stated principles of originalism? Several examples have been mentioned in this thread.
Or is it simply sufficient to acknowledge the examples, and then ask that we all move on? "Sure sometimes he’s a hack, but I think it’s more dignified to ignore all the evidence of that and simply call him principled instead."
Everyone looks principled when you ignore all the contrary evidence. But I would say that Scalia, as a champion of a supposedly "principled" worldview, should be even more ashamed of his hackery. Given your admiration for the fact that he has his principles, shouldn’t you be especially troubled by the obvious exceptions?
I didn’t think this was true, but it’s been awhile since first year Civ Pro, but I thought he was just using the 14th amend. timing to bolster his argument of the original understanding of PJ, rather than 1865 being the time at which we should measure the definition of it.
Could be wrong though.
I’m sorry to inform you that you’ve exceed your daily snark quota. Please be careful in the future of not exceeding your quota.
Most people’s point on here is that he IS just a hack because even as shoddy as the judicial philosophy of Originalism is, he STILL doesn’t adhere to it. He rules largely how he wants to based on his political beliefs which have no true grounding. I call him an idiot because anyone dumb enough to believe in Originalism as adequate to interpreting the Constitution, which requires total cognitive dissonance as far as the 9th amendment is concerned, deserves the label. He’s a hack because he just shills for the Executive v. the individual above all else – eerily similar to the Republican Party. And as the nature and beliefs of conservatism and the Republican Party has changed, so has Scalia and his decisions changed in lockstep.
There is NO judicial philosophy that one could apply that would have a justice consistently coming down the way Scalia has – there is only a political one. So, he’s either an idiot (if you really believe that he bases his decisions on shoddy Originalism) or a hack (if you see no real rhyme or reason to his decisions beyond political pimping). Take your pick. Either way, he needs to go.
Was that directed at me? If so, duly noted, I will refrain from diverging from the rabble and fall in line like the obedient liberal that I am in the future.
I think it’s pointless to have a discussion with such a high-minded interlocutor like Tymannosourus—particularly one who is so ignorant of the issues that he apparently thinks it’s obvious that Brown follows from an originalist interpretation of the 14th Amendment.
I wonder, though, how you reconcile his decisions on search and seizure, right to attorney, and confrontation clause cases, which would certainly NOT fall in line with a "republican" agenda.
Uh, you can’t say something that makes sense like that, because you’re then guilty of "lowering the debate."
Nonsense. It would just be Jesus’s way of calling Scalia up to heaven. Rapture by falling space rock. And the wingnut theo-cons would join hands in thanks and praise because getting hit by a meteor is a sure sign of God’s pleasure and good news for John McCain.
I think a number of SCOTUS justices and veteran legal minds would disagree with you. But I’ll just be thankful that you’re not on Obama’s SCOTUS short list and leave it at that.
I do not know if you intended to insult me with this comment, but if you did , I would like to thank you; this is the first time I have been insulted in a blog exchange, and I feel like I have arrived.
Having read through your numerous posts on this topic, I have two questions: (1) are you a lawyer/legal scholar? (2) Do you appear in court on a regular basis? I ask these questions because your demeanor in your responses shows a lack of professional courtesy that I have often observed in the lesser lights of the law. You remind me of the a–hole law professor I had for federal civil procedure. She took great pride in her knowledge and resorted to ignoring or belittling anyone who dared question her. However, the class was amusing because one of my friends, a Ph.D from the University of Chicago, was the one who would do most of the questioning, and the professor had to resort to ignoring or trying to belittle him because he could not intellectually understand what she was being asked.
Yes, a few examples of inconsistency have been noted: Bush v. Gore and possibly Burnham (and Gitmo is absurd, but not inconsistent), and this does indeed show almost conclusively a bias toward the right wing, which is probably his default position. But do people really think that his allegiance to an Originalist position is all some ingenious ruse for him to push a right wing agenda? I think that he deserves more credit than that, and angry little first year law students like "liberal" can certainly have a different opinion, and I respect that.
Though to be fair, at the rate Scalia’s going he’s likely to die in a hunting accident.
Well, in the words of Scalia, "Even a stopped clock is correct twice a day."
Sorry – my first attempt at snark here at BJ…
Seconded. But you have to remember that first year law exams are quickly approaching, and perhaps "liberal"’s comments are the result of high stress levels.
Um…care to elaborate on how you reached that conclusion?
I was referring to this passage from Scalia’s opinion:
This passage indicates to me that Scalia takes a very rigid view of tradition, one which does not accept much if anything that has come after 1945.
They are both politicians and lawyers. The Salon article doesn’t mention a lot about Granholm, but it does say that Patrick served as assistant attorney general for civil rights in the Clinton administration.
The thing about Miers is that she seemed to be more of a manager than a lawyer at her firm and that when she tried to begin the process of having her nomination go up, she was revealed for being, ahem, very unsuited for the court.
This will hopefully be the last thing I say on this topic before I go out, but I seriously doubt that list is even close to being exhaustive as far as prospective justices go.
@Tymannosourus: But do people really think that his allegiance to an Originalist position is all some ingenious ruse for him to push a right wing agenda?
The intellectual dishonesty of Bush v. Gore compelled me to that very conclusion. Numerous cases since then confirm it. And you are again stuck on the originalism doctrine. It is an idea that rose with Bork, was discredited with Bork, and now even Scalia applies it in a much more constrained fashion than most laymen understand it.
If you apply it the way Scalia says to apply it, it makes a certain amount of sense. If you apply it the way Scalia himself uses and abuses it, originalism appears to be a dishonest results-oriented ruse.
Thank you for spotting this. And to whoever it was who posited that Coase is bankrupt, some citations would be useful.
Indeed, he probably would agree with that, and say that it isn’t his job as a justice on the court to look at what Brennan calls "contemporary notions." Rather, only to look at what "due process" meant in the 19th century when the 14th was drafted. It is the providence of the states, he would say, to take into account contemporary leanings and new ideas when they frame their laws in the legislative sessions.
Save for Bush v. Gore, I think that Scalia is right and that he has stuck to this, that judges ought not make law.
I certainly agree with you that he has fallen short in several instances. But I still say that he commands much more respect than than many people with pre-packaged liberal arguments give him. I look at his deviations more as anamolies, but I am certainly open to reading up on more cases of where he contradicts himself… indeed, John PM brought up a really good point with Burnham.
Fair enough, and having read through the opinion again, it appears that he actually says this with regards to due process. However, if he actually believed this as part of an overarching Originalist/Strict Constructionist school of legal theory, then he would not have recently overturned California’s law allowing for the use of marjuana for medicinal purposes where the growing and use of the marjuana takes place entirely within the state.
I have to agree with Xenos. Originalism is nothing more than a reactionary legal "theory" that arose as part of the Republican agenda to roll back the policies of FDR and the rulings of the Warren Court. Otherwise, the proponents of Originalism would take into account not only the Declaration of Idependence, as Adrienne suggests, but also pay more mind to the Preamble of the Constitution, which established the Constitution "in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity." I can easily imagine what proponents of Originalism would say about the rights we have under the Bill of Rights if the Bill of Rights did not exist.
It may be true that Originalism is a sham-movement, and since I’m not a part of it, I couldn’t tell you. But Scalis is right that SC nominations wouldn’t be such a media frenzy or as polarizing, if judges only interpreted the law rather than make it.
@Tymannosourus: "judges ought not make law"
I DO NOT WANT to start another argument, much less an argument about the nature of law here, but i do "feel" "constrained" (ha!) to point out that this is a highly debatable proposition. i would be QUITE careful about assuming its validity.
The Framers BALKED at including one in the first place, but were overruled by the masses. Originally, the idea of including a Bill of Rights was shot down – WITHOUT any real debate because each and every one of them knew that some idiot (like Scalia and the others who push this crapola) would try to use the enumeration of *certain* rights as a guise to limit individual rights only to those enumerated and no more. But, we have to admit, the rights they chose to specifically highlight were the most basic and create the foundation of our Republic. If we didn’t have any enumeration, that probably would have made the gov’t way too powerful procedurally. So, they split the middle (pragmatic bastards they were) and enumerated the most basic of rights while specifically including the clause that rights are NOT limited to those enumerated.
The entire philosophy of originalism as it exists today is a sham. A misnomer – a FRAUD whose stated principles are based on intentionally ignoring the 9th amendment and the clear ORIGINAL INTENT of the document. Again, what they parade as originalism is indeed judicial activism.
Comrade Tax Analyst
From a non-lawyer here – Scalia is an unprincipled pimple on the ass of our Constitution. His rulings seem to work backwards from a desired result, and that’s not "brilliant" in any sense, just flat-out intellectually dishonest. The sooner he is popped (not literally, of course, I do not advocate assassination or violence of any sort here), the sooner the offending blemish can be cleansed and allowed to properly heal.
Jesus. This is trollery worthy of dear, departed Darrell. Argue some stupid idea into the ground, and as you cede defeat, make an even more stupid, uninformed comment.
Must… Restrain…. Fist… of Death!
That would be the same "originalist" who was the primary author for the majority in Gore v. Bush.
Sorry, but Scalia lost any claim to being an intellectually consistent "originalist" a looong time ago. Probably because originalism itself is neither intellectually consistent nor consistently applicable.
But that’s a problem for its adherents…
@Adrienne: i pretty much agree with the thrust of your arguments here, but you lost me on the 9th amendment. is it your position that the 9th is something other than a rule of construction?
I think the commenter was referring to the part of the theorem that states that "all externalities are resolved by bargaining." This has been pretty conclusively shown to fail in many, many real-world scenarios.
Obviously, this doesn’t refute the Coase Theorem, but it does make it functionally useless… like a good deal of neoliberal economic theory. As a former environmental economist and attorney, I get bombarded with libertarian screed about regulation creating massive x-inefficiency, despite the obvious reality that the obstacles associated with pricing (and charging for) environmental costs are prohibitive.
@Xenos: but doesn’t that definitionally make it good trollery?
i notice you were a tad less…restrained than i was.
okay, tough guy… sorry to have disagreed with all of you. Everyone just keep nodding your heads in unison.
But we already accept, and have since Marbury v. Madison, which set the precedent regarding judicial review, that the Court does more than just "interpret" law. They have the ability to nullify, strike down, and do a matter of other things. So, the argument about interpretation is not a convincing one.
@Tymannosourus: if i may, i think you are missing the ground for the complaint.
saying judges should interpret but not make law is pretty much an ipse dixit.
These don’t constitute law-making, though. Marbury v. Madison only stands for judicial review.
You see how I did that? Responded to a comment without resorting to ad homonym attacks? I wonder what John Cole is talking about when he mentions a circular firing squad among democrats. Might this be it?
how so? Because judges make law all the time. Sometimes in a grand fashion, more often in smaller ways. Sometimes they do so honestly, sometimes dishonestly. If it is the Supreme Court we are talking about, they often do so with barely coherent, committee-written opinions that can confuse the hell out of intelligent, well-educated people.
Which is to say "The Law" is a kludge, with Judges forming it and reforming it as a necessary part of doing their job. The line between interpreting and making law is vague and often arbitrary. At least in our legal system, it is.
Unless you define "making law" so narrowly as to only mean writing statutes, and you transform our judges into magistrates in a civil code system, the assertion you make is meaningless.
@Tymannosourus: i’ll play: what’s the basis for that (your) assertion?
Oh absolutely. It means what *exactly* it says. Those rights left unenumerated (simply because there are two many to name) are not, and should not be considered "non-constitutional" and subject to overrule by the statute with no means of judicial protection. They specifically included the 9th amendment to inform any idiot who cared enough to read it that the Constitution does NOT just protect those rights enumerated but those NOT enumerated as well just as strongly as those that were. These rights have a basis in the Constitution just as strong as those they chose to enumerate – via the 9th Amendment.
I mean, think about it. At first they didn’t include any specific rights at all. It was understood that any place where the Constitution did not grant a power to the Gov’t, there was a right retained by the people.
To interpret it merely as a "rule of construction" governing the first eight goes against everything that the framers intended when they wrote the Bill of Rights after not wanting to include on in the first place.
It’s more of a normative statement than anything. I think Scalia is right that separation of powers exist and should have the effect of state and federal legislatures makng their respective laws, and the judiciary ruling on whether those laws violate the constitution on either the state or federal level. And that’s it.
I’m a democrat, so I like the effects of judges finding that there is a "right to privacy" or that there is such a thing as "substantive due process." It affords rights that I happen to agree with. But I don’t think the method is what was originally intended. The Constitution guarantees rights, and if you want to afford more of them, compel the US representives to provide more through an amendment… don’t appoint judges to do play that role.
That was not my assertion, you said, "if judges only interpreted law…". I was inferring that judges more more than only interpreting law already.
For the remainder of my response – see Xenos in 148. He basically nailed what I was going to write, thereby saving me some time.
Well, then, by all means let’s keep doing it.
I think you have the entire point of the document backward. The Constitution was NEVER meant to limit individuals rights, and ESPECIALLY not to limit them to those specifically enumerated. The Constitution was mean to limit GOVERNMENT to the powers enumerated. Again, the 9th Amendment. The Constitution recognizes that there were too many rights to specifically enumerate and thus granted us a way of STILL ensuring the protection of those rights WITHOUT having to amend the Constitution over and over in a limitless fashion since there are too many to enumerate in the first place.
That’s why the framers didn’t want to include a Bill of Rights in the first damn place because people would think that those enumerated were the only rights afforded. That’s wrong and contrary to EVERYTHING we know about the document. Just because a right is not enumerated does not mean that it does not constitutionally exist nor that it is unworthy or undeserving of recognition or protection.
I think you are picking and choosing the aspects of the Constitution that you agree with. Remember that none of those rights you are talking about were originally intended to reach the states… you had to wait for the 14th amend. to come along for that. So there were some major limits to what the BOR was supposed to reach.
Anyways, it’s been nice talking to some of you, I’m gonna watch Wall-E with my kid now.
@liberal: Excellent question. Brown v. Board reads as a sociological study on society and race. It flies in the face of the clear intention of the founders, in the face of precedent (Plessy v. Ferguson) and in the face of contemporary societal norms. Still, Scalia says it is correct. How? Why? We’d really like to know Justice Scalia, why don’t you tell us?
Having noted your acknowledgment that originalism is largely nonsense, I also have to note that the idea that there is a simple "either/or" involving interpreting the law as opposed to "making law" is also a phony argument.
Consider one Bush Administration tactic which was never discussed during the presidential debates or any interview with the candidates, that is, the use of presidential signing statements. One view pushed by the Administration is that the president’s opinion about a law should be considered to be on the same level as "legislative intent" when it comes to any Supreme Court deliberations. You also have the potential of all kinds of violations of the idea of a separation of powers when you have a president in effect "re-making" law instead of simply executing the will of Congress, which supposedly represents the will of the people.
Between Bush and Cheney, we saw the creation of all manner of new powers which were not by any stretch of the imagination ever considered, debated or imagined by the founders. The potential constitutional issues go well beyond the typical carping about the role of the Supreme Court.
I also note that the practical impact of the insistence on "originalism" or "strict construction" is almost always to rigidly support the status quo and majority power in order to tell an aggrieved party that they just have to continue to suffer until the majority decides to throw them a bone. So for example, in many of the civil rights cases, the issue was not so much what was actually written into law, but upholding a bigoted view of social tradition.
If I can argue on behalf of Scalia, Plessy was indefensible garbage. The main authority it rested on was a Massachusetts case decided by Lemuel Shaw ten years before the Civil War and eighteen years before the XIV amendment.
It was not much of a precedent to overturn, really. The fun is to see who remembers which Shaw case they read in first year Torts. Bonus points for identifying why the narrator in Bartleby the Scrivenor is modeled on Shaw.
Brick Oven Bill
The form of government advocated in the Federalist Papers and codified in the Constitution provided more freedoms than any form of government that preceded it. It was patterned on the Greek ‘democracy’ where 3,000 out of 200,000 Greeks were granted voting rights. True, they extended voting rights to everybody in late Rome, but that didn’t work out too well.
In contrast, the Founders extended voting rights to a full 25% of men. This was a stable system as history has proven.
The only difference between 1750, and 1850, and today is the widespread use of fossil fuels, and more recently, a fiat currency. These have added energy to a political system that might otherwise have failed. This excess energy has allowed the people to extend too much freedom to themselves. These types of government always fail in the end as the Citizens vote themselves access to the Treasury.
We will be lucky to regain the level of freedoms that the Founders extended to their fellow Citizens back in 1789 before this whole cycle is over. I believe that we will be able to pull it off though. The more I think about it, the more I believe that America is divinely inspired. So I’m not too worried.
Ok, Tymannosourus. Assuming we give him Bush v. Gore (and that’s a HUGE assumption), explain the Ledbetter v. Goodyear case. His position with that of the majority amounted to Ledbetter’s claim – that each check is an act of discrimination – is inconsistent with the statute, because there was no evidence of discriminatory intent in the issuing of the checks.
The intent of the law is crystal clear – it is designed to prevent against wage discrimination based on sex. Ledbetter was clearly discriminated against based on her sex. The only contention was the statute of limitations. Scalia flew in the face of common sense and insisted that Congressional intent was that if she didn’t catch the discrimination in the first 180 days, she wasn’t being discriminated against.
It’s the equivalent of having your savings account raided by thieves once a month for 6 months and only catching them a 181 days into the crime, then having a court rule that you weren’t really stolen from because you didn’t catch the thieves soon enough.
How does this interpretation of law fit into Scalia’s "Originalist" argument?
for some reason i can’t get this to load other than the mobile version, so here a limited response–
Adrienne: i agree that someone upthread has the propositions backwards, but i can’t go so far as with you for the weight you want to put on the 9th. in other words while it does preclude "lawless" incursions on whatever residium of rights the people may have, i don’t think anyone would argue that it is a barrier to the expansion of enumerated powers. the commerce clause in all its positive and negative glory is probably the best example of this.
as for making law: the other rejoinder is that it’s just not possible to not "make" law: the act of declaring what the law is creates law, especially in a system like the US, which does not issue advisory opinions. there are lots of other more esoteric explications of this but i think you get the idea.
Wait, the Treasury? Isn’t that where the citizens keep their tax dollars? Are you suggesting that Democracies fail specifically because the people within them adhere to "No Taxation without Representation"?
I’m sorry, I didn’t realize we had a Tory in our midst.
Um, tubed toothpaste. The tango. Rocket belts. Canned salmon.
Sterilization. Rolled toilet paper. Hot dogs.
The Mustang. House.
The West Coast Offense.
We will all sleep better tonight.
Shorter Oven-Mitt Bill: I can’t wait to reinstitute property requirements for voting, disenfranchise women, and reenslave the Negroes!
@Brick Oven Bill: you should absolutely get a job writing for sarah palin. or steven colbert.
Honestly it reminds me of an old Monty Python sketch quote.
"My solution to the budget problem is to tax all foreigners living abroad."
Not to mention a population of 300 million instead of 3 million, fifty states instead of 13, a standing army, our status as one of the preminent powers in the world, and Amendments 11 through 27 (although 18 and 21 cancel each other out). And spam – can’t forget spam.
Oh go fuck off. You’ve got about 10 different lawyers on this thread (not me, natch) telling you in very specific terms with very specific examples on where and how Scalia is a hack and tends to write his opinions to match his predetermined outcome. That’s not "pre-packaged" anything, and to simply write off the vast myriad of honest BS calls on your comments is dishonest and lazy. Like Scalia himself, actually.
Came back to check for a second and found your gem:
I’m not trying to dismiss arguments that have focused here on the constitution and precedent. Since I’m one of the "10 lawyers" on this thread, I’ve been responding to actual arguments that don’t center around calling him "a partisan hack, such a Republican blowhard, liberal-HATING prick bastard," and you know, address the flaws (and there are several) in his theory.
I may have missed a few of the comments, since I’m getting it from all angles here, but I feel like I’ve tried to do more than call names and actually get to what he is trying to say. For my efforts, I have been told to "fuck off," that I’m a "moron," and "dense."
Gotta love the visceral debate, though.
If Scalia steps down, Obama should immediately nominate Glenn Greenwald to replace him.
Should, but won’t.
If the Ninth Amendment is nothing but a rule of construction, how do you explain Griswold and Roe?
Oh, puh-leeeze. The fact that I agree with him more often than not doesn’t change the fact that Greenwald is a small-minded, sanctimonious prig who is in love with the sound of his own voice.
Ummm … that makes him sound a lot like Scalia, doesn’t it?
I’m continually annoyed by those who argue, and sometimes even take for granted, that Scalia is the Court’s most intelligent Justice. Almost invariably, they argue this because they enjoy his written opinions so much.
It is amazing intellectual vanity to argue that because you enjoy the pithyness, wit and accessibility of his writing, then he must be the smartest Justice. Smart people often have inscrutable prose, but because they enjoy his snide, often funny, and very clear argumentation, observers make the extremely bold statement that Scalia is the smartest person in a group that consists of some of the best legal minds of the past half-century.
Among the Justices, it has been reported that Stevens and Souter are regarded as the smartest. In oral arguments, Souter and Breyer are just as probing and often more substantive than Scalia.
Yet people think Scalia is the smartest because they enjoy reading his opinions. Souter’s opinions are often overly long and have a lot of digressions and history. I guess if he wants the mantle of smartest Justice he should start throwing in pithy one-liners?
Wait, you’re accusing your debate opponents here of having "pre-packaged" views???
You realize that this line of the thread has gone like this:
It’s not rocket surgery. :)
Heavens, before I go to bed, I make one comment in response to Tymannosourus about the common difficulty of simply characterising judges as "left" or "right", and their occasional tendency to change their views and confound the people who appointed them, think "well, he’s opened himself up to some abuse", and then when I come back there’s blood all over the thread.
Have you kiddies been playing nicely? I don’t think so.
And of course, from the wingnuts’ perspective, when a "liberal" judge does this, they are usurping the role of the legislature. When a "conservative" judge does it, they are preserving the intention of the founders.
The right to own slaves, kill Indians for their land and hang young women for being witches might never come back!
You guys are awesome.
I’ve said my piece, but you’ve all made me reconsider my Democratic party affiliation.
I love this website, but if you’re reconsidering your party affiliation simply because some anonymous people you will never meet who love arguing to hear the sound of their own typing abused you on here (even if they do have a point about Scalia), you’re doing it wrong.
Scurrilous, violent, slightly deranged, abusive and incoherent discussions are the reason I come here!
(oh, and the vain hope that my doggie might get on the front page eventually).
So someone points out the gaping holes in your logic, and now you want to become a Republican?
Oh sorry, I did it again!
TheAssInTheHatOnMyCat(Formerly Comrade Tax Analyst)
This is funny. You tell us all how "Principled" Scalia is – then you admit that his position in Bush v. Gore was inconsistent with that. You say, "He is an originalist, who purportedly reads nothing into the Constitution; just what is there, and what the meanings of the words were at the founding.", but then later back away from this in the face of persuasive arguments that "Originalism" is pretty much a euphemistic fraud. Fine…except later on your talking about "Originalism" again, and appear to be defending it again. Several other commenters bring up other instances beyond Bush v. Gore that appear to exemplify decisions based on a preferred outcome leaning towards a politically biased position – more inconsistencies in this "Principled" judge’s portfolio, yet you keep asking us to set those aside as though a Supreme Court Justice should be allotted a certain number of "mulligans" when they fail to "walk the walk" of their alleged judicial standards. How many inconsistencies are required…all leaning in the same direction politically…for you to accept that Justice Scalia is not a fair-minded judge and is sorely lacking in most of the qualities that should be essential in a Justice on the Supreme Court? His combative temperment, rude and dismissive demeanor, highly-flexible integrity, and pretzel-twisted logical constructions have all been quite openly displayed and highlighted to the extent that the only way to miss them is to look away or cover one’s eyes. You continually ask or expect us to do this. Again, as a non-lawyer, let me ask you this simple question: WHY?
Note that while I’m highly annoyed, I have not called you any names here. I haven’t even called that scum-bucket (Oops!), uh, "guy", Scalia anything more than a "pimple on the ass of our Constitution", at least until now. Anyway, I figure you’ll be around to look again. I don’t really care if you answer or not, I’d justice like you to consider why anyone here should take what you say about Scalia seriously and NOT give you a hard time. Really.
I was really just kidding, trying to put a cap on my contributions here. As you can see from my numerous posts, I’m really not bothered by people twisting my words and calling me names. All I’ve been doing from the beginning is saying that he and his theories deserve more than to be brushed aside, and the 2% of people who actually know what they are talking about have provided some very forceful arguments, and I’ve conceded where they are correct.
Where were you several hours ago? I could have used a moderator, friend.
Hmmm. I was in bed, asleep because it was night time here.
I’m not sure how much "moderating" I would have done. My contribution to discussions like this is usually to disagree in the way that might prompt the most heated discussion. You seem to have managed that all on your own.
My points were merely that characterising almost any judge as "liberal" or "conservative" misses the subtleties of their views on a range of complex topics and that judges with wildly different views can end up on the same side of a particular decision, and secondly that judges who are appointed on the basis of their past views sometimes surprise and disappoint the people who appointed them.
The evidence seems pretty clear that (whatever other merits he may have) Scalia is partisan, has no particular commitment to any legal principles when they are inconvenient, and more importantly, is a serious dickhead.
@TheAssInTheHatOnMyCat(Formerly Comrade Tax Analyst):
These are all fair points but notice that they are opinions.
I don’t believe that I ever used the word "principled" that everyone seems to be focusing on. If you go back, you’ll actually notice that I emphasized the word "purportedly" when describing Scalia’s Originalism. That’s because none of us know what Scalia’s true motive is besides him.
Inconsistencies for most of you means "AHA!! Look at what he really is! It’s right there plain as day!" Where for me it is more along the lines of an incorrectly decided opinion.
I posed the question that NOBODY was inclined to answer: If he is such an adament right wing conservative, than how do you explain that he has been one of, if not THE most pro-"accused’s rights" justice on the bench over the last 30 years? But his critics would like to forget this point because it doesn’t let him fit neatly within their idea of what kind of villain he is.
I will be honest with you, man: my field of practice is criminal law, and so this is probably where I am focusing too much on Scalia’s impact. And for that, you all will have to forgive me.
All that being said, I am disheartened by the commenters here who seem hell-bent on all of us liberals signing on to every party platform lock, stock and barrel. Scalia is an obvious and easy target, I just feel that he isn’t what most people think he is.
Fine then, I didn’t need your help anyways, I had this thing totally under control :)
Yes, I could tell.
Um, no, you really don’t seem to understand this. Scalia has a full-blown philosophy on how to correctly and objectively decide opinions, and supposedly any deviation is just liberal results-oriented thinking. But when people talk about Bush v Gore etc they aren’t (just) complaining about the outcome, they’re complaining that Scalia basically followed results-oriented reasoning, the thing his "principles" are all about avoiding. Is this really hard to understand?
If you want to argue that Scalia has made some good rulings regarding "pro-accused-rights," that’s one thing. But that isn’t actually what the discussion here has been about.
This isn’t about imposing liberal orthodoxy, it’s about basic common sense and decency. Scalia claims to be principled but is obviously not. I’m not saying here that he’s wrong about all of his rulings, and I’m not saying that you have to think that he is wrong all the time. I’m just saying that it’s total bullshit when someone preaches about originalism and then blatantly fails to live up to that.
I think you and many others on this thread have imagined me as a right wing Scalia lover, and have failed to actually read through exactly what I have said. A lot of claims have been projected onto me that I have never made: that he is principled, entirely consistent etc.
Please read through my comments.
TheAssInTheHatOnMyCat(Formerly Comrade Tax Analyst)
Absolutely…opinions, no question about that, but I believe that each of these less-than-admirable or desirable traits or foibles has been amply displayed on enough occasions to draw a reasonable conclusion about Scalia’s overall suitability for his position. After all, we can parse words (I understand that’s what folks in the legal profession DO, and I also understand how totally essential it is to the process that they do this – if you don’t have a definition of what "is" is, then you can hardly rule on whether something "is" or "isn’t" within the confines of the statute or law), but at the end of the day the decisions that Supreme Court justices make are of monumental importance. I’m not Mary Poppins, so I’m not saying that Scalia is the first and only SCOTUS judge to have a heavy thumb in one direction or another on the scales of justice, but it burns my ass to see such a justice praised on any level when then carry on with that type of M.O. in their back pocket. I suppose for a lawyer it’s more important to KNOW a particular judge’s inclinations than to get worked up over it. Like a baseball umpire with a wide strike zone…it does the batter no good to bitch, wail or do their own re-enactment of Fredric March’s role in "Inherit The Wind". You try to adjust to it. But it’s hard for me (and many others) to KNOW that a decision like Bush v. Gore was made for the most part by Scalia and others according to a political agenda rather than the facts of the case under the law, and then have somebody tell me what a "brilliant" legal mind this self-important jerk has. Hell, maybe he DOES have a brilliant legal mind, but it seems rather clear that Scalia never really found it necessary to employ it in deciding that case. This was more than an academic exercise and a lot of Americans and other folks have paid a mighty high price as a direct result. I find it a bit much to expect people who understand this to be sanguine about it.
Be that as it may, later on you DID say something that I thoroughly with here:
I think that’s giving Scalia way too much credit. Now he COULD possibly have led such a movement, had he not been such an arrogant, dismissive SOB. However, Scalia always found it more to his taste to lay derisive sarcasm on his colleagues instead of working with logic or persuasion to bring other justices over to his point of view. After all, there’s only so much you can accomplish with bullying, particularly with colleagues who stand on equal footing with regard to "Job Security". But given Scalia’s perchant for condescension it’s highly doubtful he could have pulled something like this off. Actually, I’m reasonably sure we would have been jobbed a lot worse by this set of justices had Scalia taken a less abrasive approach to dealing with his colleagues, especially Kennedy.
Well, I guess that’s all for now.
TheAssInTheHatOnMyCat(Formerly Comrade Tax Analyst)
Damn, I thought I proof-read that last post thoroughly…but I missed at least one place. I left out "disagree", which kind of made my prefacing statement…hmmm…I’ll use a technical term here: "kinda dumb".
Be that as it may, later on you DID say something that I thoroughly disagree with here:
But hell, you’re a lawyer, so sue me.
@TheAssInTheHatOnMyCat(Formerly Comrade Tax Analyst):
I’m going to leave you with an analogy that might work, might not:
I think "The Ramones" are the worst band that has ever lived. And I’m serious.
I hate their hair, their fast-paced "punk" tempo, their lyrics, their vocals and how Joey (RIP) wore the same hairstyle for 30 years. I really don’t get how anyone could like their music.
I understand, however, that in the music community, there are hundreds of thousands of people that LOVE "The Ramones." I need to pay attention to this fact.
I HATE a lot of the RESULTS that come out of Scalia’s opinions WRT privacy rights, torture, affirmative action, D.C. gun laws, etc. But just as it is too easy for me to say: the Ramones suck, and anyone who listens to them has no idea what they are talking about; so, too, is it too easy to say, Scalia is a "hack," "liberal-hater," etc.
Antonin, like Joey, is providing a result that I don’t like. But I owe it to myself to try to understand its appeal.
There is too much at stake in these debates for us to brush aside an entire SC movement just because we don’t like the tune that is being played… feel me?
TheAssInTheHatOnMyCat(Formerly Comrade Tax Analyst)
Oh, sure…I think I see the overall point you are trying to make. It appears we are talking about slightly different aspects of Scalia’s influence during his tenure…but maybe not(?). So let’s see – It looks like you are looking at the overall right-ward turn (some would say "lurch" instead of turn) of the court. Certainly that’s a point that cannot seriously be disputed. What MY point is, though, is that Scalia’s overall individual influence on the court has not been anywhere near as significant as you seemed to thinkit was…and again, perhaps I was misreading the point of your remark. But anyway, to metaphorically paraphrase my point – was he able to guide or steer the court’s direction, or was he just another vessel that happened to be listing to the far right as it(he) was bobbing along? That would have made him the fourth or fifth such vessel in many cases, but I question whether his position had any effect on the other vessels…or were they bobbing alongside his because they were so inclined to begin with? I would posit (quite thankfully, I might add) that it was the latter. In the end, I think it’s pretty clear that he had far less of that type of sway or influence than he COULD have had (again, thankfully) if he not been such an insufferable ass-hat. Now, I’m not just calling him that because I detest him, although it’s quite true that I do. But from what I’ve read about this court I get the distinct impression that dear Antonin really doesn’t work and play all that well with others. Had he been capable of somehow masking his disdain for his colleagues and actually forming and elucidating cogent arguments instead of dismissive sarcasm he might have been a more persuasive advocate of his positions – that is, if Scalia really ever actually possessed the legal chops that many ascribed to him.
I most likely won’t be in a position to check back to see if you replied until Monday, I’ll be leaving the office shortly and my home PC is not presently connected to the InterNet, although with a bit of luck it possible could be some time this weekend.
The behind the scenes discussions which must go on in chambers are often forgotten, or at least their importance underestimated. Cases are heard in court, but decided in someone’s office, presumably with groups of Supreme Court justices calling in on each other to discuss the case, compare ideas, negotiating joint judgments, and allocate drafting responsibilities. This is not even to mention the law clerks beavering away in the background researching and writing.
If you have been a bastard, how do you convince the majority to agree with you?
You got my point exactly.
Of course it’d be nice to have someone on the bench that’s an unabashed pro-civil liberties type across the board. Him combining it with an assholishness that would make wingers rabid-dog-mouth frothy on a regular basis is just icing on the cake.
Bravo for Scalia on the 2nd Amendment in 2008. ’nuff said.
@Tattoosydney: Cute doggie. :D
Is that galangal you have growing in there?
@Brick Oven Bill:
While I think the Bush admin has been a nightmare for civil liberties, it’s pretty funny for someone to make this statement immediately after a black man was elected president.
Sure, you can find some far-right legal scholars who think that Brown is consistent with originalist doctrine, but the wide consensus is that it’s not.
Of course, you can define originalism to mean something so vague that even someone like Justice Brennan was an originalist, in which case it’s almost a tautology.
As for me not being on Obama’s USSC shortlist, back atcha, pal.
No kidding…a real moderator would have seen this thoroughly moronic statement re originalism and Brown v. Board:
and realized that you’re so ill-informed, you don’t even know that the common claim "originalism cannot be made consistent with Brown" refers to the question of how originalism could (consistently) interpret the 14th itself and lead to Brown.
And then the moderator would do you a favor and spike your postings, thus saving you from further embarassing yourself.
You’re back! I thought you had left for good after John PM bitch-slapped you in comment #118…
As I mentioned above, I’m done with you. You had your chance to debate me like an adult earlier on legal arguments rather than resorting to personal attacks.
Peace dude, good luck with finals… and don’t forget that Gilbert’s provides an excellent study outline for your Con Law exam.
Pointing out that you’re wrong and have no understanding of the topic of discussion isn’t an ad hominem attack. So we’ll add that to the list of things of which you are ignorant: the distinction between an ad homimem attack and a substantive one.
You never did effectively reply to any of my points and show little understanding of constitutional theory, particularly on the issue of originalism and Brown.
Andrew J. Lazarus
Actually, some of us have to work to earn money (and not have it handed to us as economic rent).
John PM clearly hasn’t been around blogs, or around USENET.
As for bitch-slapping, he had his panties in a twist about my tone. Which is pretty funny, and hardly a bitch-slap. If he thinks that tone is harsh, he needs to grow a thicker skin.
As for my tone directed at you, it’s quite reasonable, given your combination of arrogance and ignorance.