Scalia Agrees To Speak To New Conservative Members on the Constitution

Associate Justice Antonin Scalia is again in the midst of controversy with his decision to accept an invitation from Rep. Michele Bachmann (R-Minn.) to speak to incoming conservative members about the Constitution as part of their training. Bachmann, the founder of the House’s Tea Party Caucus, is leading efforts to repeal health care and seek new legislation based on a more conservative view of the Constitution. The decision to participate in such an event shows exceedingly poor judgment.

Scalia has long invited such criticism with his appearances at conservative conferences and personal trips. Indeed, as discussed in an earlier column, such questionable decisions probably blocked Scalia’s consideration as chief justice despite his being the intellectual leader of the right side of the Court.

The members of this Court appear to have an increasingly dismissive attitude toward their duty to avoid appearance of this kind. Justice Alito was recently (and justifiably) criticized for attending political fundraisers as well as his improper expression of disagreement with the President during a State of the Union.

Ultimately, this trend must be attributed to a failure on the part of Chief Justice Roberts to maintain core principles of neutrality and proper decorum on the Court. It is the duty of the Chief Justice to go to errant justices and emphasize these values. Instead, Roberts appears to have taken at best a passive role and at worst a supportive role in these controversies. I was astonished after the State of the Union controversy to see Roberts appear to support Alito instead of reaffirming the long-standing principle of complete neutrality in these speeches. Justice should not in my view even applaud at such events.
I was a bit surprised to see the president of the Ethics and Public Policy Center support Scalia on this issue despite the criticism of ethics and constitutional scholars. M. Edward Whelan, a former clerk to Scalia, told the LA Times below, appears to believe this is a purely subjective test:
“does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” If that is the test, there would be objective standard for justices and, so long as a justice takes a highly permissive or narcissistic view of such appearances, there would be no problem with any appearance. The EPPC is described on its website as

Washington, D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy. From the Cold War to the war on terrorism, from disputes over the role of religion in public life to battles over the nature of the family, EPPC and its scholars have consistently sought to defend the great Western ethical imperatives — respect for the inherent dignity of the human person, individual freedom and responsibility, justice, the rule of law, and limited government.

However, Mr. Whelan in the update below has indicated that he does not endorse a subjective test and actually agrees with Gillers in the article linked below.

This particular appearance leaves the impression of an alliance between a conservative justice and conservative members in a Congress planning a series of measures based on a conservative reading of the Constitution. It undermines the integrity of the Court and I would be equally opposed to liberal justices participating in Democratic training sessions. Such participation leaves the appearance of a pep talk like a coach at the start of a game.

For full disclosure, I have regularly attended lunches with members of Congress where I have been asked to discuss constitutional questions. Rep. Bachmann has attended some of these lunches. I have always appreciated the ongoing interest in members in having a dialogue on the constitution and I credit Rep. Bachmann with her own desire to discuss such issues with new members. However, the ethical concerns in this particular speaker outweighs its educational value in my view. [Update: It appears that some conservative radio hosts are saying that I called Rep. Bachmann “bombastic.” Just for the record, that was the description of the reporter in the article below in a summary of my views on Scalia’s participation — not my own word. I would have been equally opposed to a democratic member incorporating a liberal justice. The controversy over this particular word from the reporters is in my view . . . well . . . bombastic].

UPDATE: Following this post, Mr. Whelan posted a response to clarify his remarks:

An article in today’s Los Angeles Times includes more commentary on the matter, including law professor Jonathan Turley’s observation that Scalia’s agreement to speak “suggests an alliance between the conservative members of the court and the conservative members of Congress.” The article also includes my puzzled response to Turley’s assertion:

“Does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” Whelan said. “My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group* of members of Congress who invited him.”

Unfortunately, as a result of an editing error (in the current online version), the placement of my remarks gives the mistaken impression that I was disputing law professor Stephen Gillers, who is quoted for these eminently sensible remarks:

“In my view, a judge must take care not to speak only to groups on one side of the partisan divide,” said Stephen Gillers, a law professor at New York University. “I have no problem with such a talk so long as he avoids excessive identification with the Republican agenda.”

Meanwhile, I see that Turley has posted on his blog an item stating that he “was a bit surprised to see [me] support Scalia on this issue despite the criticism of ethics and constitutional scholars.” Two quick responses: (1) In my quoted comment, I was largely trying to understand the bounds of Turley’s proposition (though, given the editing error in the article, that wouldn’t have been clear to Turley). (2) My initial reaction is largely the same as Gillers’s, so it wouldn’t seem to be the case that I am standing against some consensus of “ethics and constitutional scholars” (not that that fact alone would particularly trouble me).

In a passage that may be garbled by some sort of glitch, Turley also faults me for “appear[ing] to believe this is a purely subjective test.” I confess that I can’t make heads or tails of his assertion; I don’t even know what “this” is referring to. I see nothing in my remarks that implies a “subjective test” (much less a “purely subjective test”). Maybe Turley thinks that I’m maintaining that it’s okay for Scalia to accept the invitation so long as he has the subjective intention of accepting similar invitations from other groups. But my point (and, I think, Gillers’s) is instead that it’s the broader pattern of speeches, not any isolated event, that matters.

* The actual comment that I provided to the reporter referred to “any similarly sized group,” not “any similar group.”

I appreciate Mr. Whelan’s clarification and I have noted it above as well. I actually have qualms with the position of Professor Gillers on this issue. I believe participation in such events inherently raises appearance problems. It is not a matter of a prohibition under the ethics rules but rather the underlying principles of the Court itself.

Source: LA Times

Jonathan Turley

61 thoughts on “Scalia Agrees To Speak To New Conservative Members on the Constitution

  1. Well maybe he may go into detail why he feels this way:

    Scalia Says Women, Gays Not Protected by Constitution

    Supreme Court Justice Antonin Scalia is a constitutional originalist who interprets the constitution based on what he believes its authors meant—you know, without pesky things like “protection against discrimination on the basis of gender or sexual orientation.”

    Surprise, surprise! There is no line in the Constitution that reads, “ATTN: ANTONIN SCALIA JUST SO YOU KNOW WOMEN ARE AFFORDED THE SAME CONSTITUTIONAL PROTECTIONS AS EVERYONE ELSE FYI,” so Justice Scalia is pretty confident that no such protections exist. And, hey! Don’t complain to him—you want to protect women, pass a goddamn law. He’s busy! From an interview in California Lawyer:

    http://gawker.com/5724020/scalia-says-women-gays-not-protected-by-constitution

  2. So a constitutional expert should not speak to federal law makers about the constitution because he is a supreme court justice? what a idiotic stance to make.

    Why to libs do all they can to keep the constitution out of Washington?

    Justice Scalia is not advising a political party on legislation. I’m sure that if any Dems was interested in learning about the constitution they would be more than welcome to join the seminar.

  3. Poor Scalia … since Cheney left town he’s had no one to hang with. Appearance don’t matter much when one is desperate for social interaction … Bachmann and her teabuddies will just have to do … it’s better than nothin’.

    As to his judgement … he was part of the coup d’etat that crowned George back in 2000/2001 … he’s probably going to scope out the new bunch; see if there’s a likely candidate for another crowning.

  4. Blouise-Cheney is up and running-er maybe not running, but you get the picture, with his heart pump. Maybe another Cheney/Scalia duck hunting trip is out of the question (too bad with Cheney’s aim), but I am sure they can “hang together.”

    I looked at this group’s website and I was pretty shocked to see they are a 501(c)(3) org, as they are seriously advocating political points of view. As far as being Judeo-Christian, they appear to be mostly right wing Christian (Cath. and prot.). Of their 22 “fellows”, it appears that only one is a Jew, the rest being unidentified but probably goy. Also, of the 22 “fellows”, only one is a woman and she is the editor of their newspaper. Rick Santorum is a fellow. I wonder where they get their money from [Koch Bros. or equivalents] and how they can claim to be a 501(c)(3) org. Maybe I will ask them.

  5. ” I credit Rep. Bachmann with her own desire to discuss such issues with new members.”

    **************************
    I assme this would be akin to discussing Newtonian physics with a first grader: “Ooooh, look a penumbra!” “Is the Supremacy Clause like Santa Claus?” “About that three-fifths stuff, is that like the bottles in my Daddy’s ‘medicine’ cabinet?”

    Yeesh.

    As for Scalia, well, ideologues of a feather ….

  6. The damage done to our courts by St. Ronnie & the Bush guys is appalling and will not end any time soon.

    When I read the 14th amendment I see that it says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”

    Now, granted, I am not a fabulous constitutional scholar with years of experience but I am having difficulty in seeing how gay, or woman, or color have any affect on the thing. it says “PERSON” and “CITIZENS OF THE UNITED STATES”. Since, in the unquestionable opinion of a ‘strict constructionist’ like Justice Scalia, the constitution can not be interpreted it must be dealt with as written how does this exclude a person who is an American citizen merely because said person lacks a penis?

  7. Scalia is a political hack that thinks the Constitution does not protect over 1/2 of the population of our country. According to Scalia, if a State decides that discrimination against women is what that State wants, then the Constitution won’t get in their way. Hey, Justice Scalia, WWJD?

  8. Maybe he wants to retire and thinks impeachment would make his memoirs sell better?

    Or maybe he wants to run for President?

    What’s the worst that could happen? Michele can’t get any more muddled….can she?

  9. This sounds like one of those free speech boundries I’m always so muddled about. Does he have freedom of association or not?

  10. I have a copy of the USMS Prisoner Tracking System training and operations manual. It lists offense codes. The offense codes including homosexual act with man and homosexual act with woman. It’s strange that USMS hasn’t updated them to reflect the legality of homosexual acts.

  11. Buckeye,
    I don’t think this is a free speech issue. He is certaintly free to speak anywhere he wants to, but as a judge, he has certain ethical restrictions to not appear to be favoring current or future litigants.

  12. Sorry Kay, just because it is legal does not mean it is not offensive to moral people.

    “The right to do something does not mean that doing it is right.” ~William Safire

  13. eniobob,
    Did I mispell something there? I am pretty slow today so I am probably missing your point.
    Buddha, I agree on the ethical person over the moral person comment.

  14. mcoville,

    Not necessarily.

    Morals are religiously based edicts for behavior and ethics are rationally based edicts for behavior. Morals, like all religious edicts, can and are twisted on a regular basis to justify the irrationality of the speaker. Because ethics are based on logic and not some mystic formula from ages gone by, they are inherently less capable of distortion for bad purposes. An ethical person is an ethical person and those ethics may correspond to many morals, but a moral person is perfectly capable of distorting their religious beliefs to rationalize the unethical (for example, see Tootie’s perpetual homophobia compared to the concept that God is love). That makes them hypocritical. And hypocrisy is unethical no matter how you slice it . . . and usually immoral. I point to the the history of the RCC and the modern evangelicals (like our recent fur stealing pastor) for many examples of evil being done in under the guise of morality. Many wars and many deaths were started over morals by supposedly moral people. Ethics? Not so much. In fact, I can’t think of a single war started over ethics. Or a genocide. Or aiding and abetting pedophilia. Or torture to force conversions. Or stealing money. Or infidelity. Or . . . the list goes on and on.

    While some morals may be ethical, they don’t have the backing of logic to act as a proof. Just belief. And belief is a pliant beast. Reason is not.

  15. No.

    You operate off a faulty definition of morals.

    Nice try though. And by nice, I mean woefully insufficient.

    Ethics are a branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.

    Morals are an attempt to teach ethics by parable or edict such as the moral teaching or practical lesson contained in a fable, tale, experience, etc. For example, Christian morals. Or Islamic morals. Or Jewish morals. Or (insert your religion of choice) morals. Keep in mind, it was moral under the religious teachings of the Aztecs to commit human sacrifice to insure the sun would rise every day.

    Reason versus religion.

    Religion has no systematic checks. Just rule by fiat.

    Reason does have systematic checks. Rule by reason.

    Prove me wrong.

  16. MCOville,

    Should I just assume by your clumsy attempt to dodge the question while appearing to be superior, you can’t answer the question?

    I can. A moral person is somebody who tries to abide by the laws and customs of his religion and culture. As a bonus, I’ll throw in my definition of an ethical person: Someone who does the least amount of harm to other life as possible while still protecting his own.

    Your turn.

    Buddha,

    I agree. However, oddly enough, I’m pretty flexible with the definitions of the two words. Or, rather, I’m willing to let other people be flexible. It’s the only way to have this kind of discussion without turning it into a war of usages.

    Also, I’d say that morals come from culture (which religion is part of) rather than only religion.

  17. Buddha and Gyges,
    Well done. The Catholic Priests who abused children for years were moral people by mcoville’s definition, but they certaintly weren’t ethical. The people who have killed in the name of Christ or Allah or God, may be considered moral people by their particular faith, but killing someone for religious reasons is not ethical.

  18. Rafflaw,

    Nah, MCO never actually gave a definition. Apparently, showing curiosity about the views of other means you’re not worthy of actually hearing those views.

    Or alternately he’s ashamed of what his definition is or, like pornography, simply “knows it when he sees it.”

  19. raff:

    No mispeeling,I took it to say that some of the new or seasoned congresspeople may find themselves at a defense table in the future.LOL!!

  20. rafflaw

    He is certaintly free to speak anywhere he wants to, but as a judge, he has certain ethical restrictions to not appear to be favoring current or future litigants.

    ————————————————

    If he speaks to an opposing political group, also, would that make it alright? It seems that all incoming freshmen could use a brushup on the constitution; I’m pretty sure my new congressman could. Professor Turley – think about it.

    Who could be excluded as future litigants? Any college, political, business, or (_____) group could be a future litigant.

    If that’s the case, it sounds to me like he must be prohibited from speaking about his profession to any group until he retires, since he couldn’t possibly arrange to speak equally to both sides of any litigation before such litigation even occurs.

    That seems harsh, but maybe that is the price of being on the highest court?

  21. kay,

    That may be the funniest thing you’ve ever said.

    It’s Scalia.

    “Recuse” isn’t in his crooked vocabulary.

  22. Amityfessenden, you’re right, I visited the site also and and it’s a nest of hard right, neo-con activists. Following the money is always a good idea. Lot’s of luck getting to the truth of that. You’re right also about the prohibitions on political activity Whelans group seems to be disregarding. But people that don’t know that there is a double standard at work in the selective application of the law just haven’t been paying attention:

    http://en.wikipedia.org/wiki/501(c)#501.28c.29.283.29

    Thanks for he good posting AmityF.
    **

    I’m not surprised though that Whelan would jump on the Professor’s criticism. His other alternative would be to pounce on a the former Bush chief ethics officer Mr. Painter who said in the original article:

    ” “I don’t think it is appropriate for justices to meet with members of Congress, particularly in this highly partisan environment,” said Richard Painter, a law professor at the University of Minnesota who served as a chief ethics officer in the George W. Bush administration. ”

    Whelan seems to be a well paid troll, arguing with whom the right would see as a likely demon of the left instead of taking on Mr. Painter. Reminds me of the punch-line to the old joke: ‘We’ve established what you are, now we’re just haggling over the price’. :-)

  23. Thanks Kay S.

    Canon 4B is as follows:

    B. A judge may appear at a public hearing before, or otherwise consult with, an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area. A judge acting pro se may also appear before or consult with such officials or bodies in a matter involving the judge or the judge’s interest.

    Does this fit?

  24. The four far-right justices are not politically neutral (and Kennedy certainly wasn’t when he joined Bush v. Gore), so why should they pretend to be? If they exercised decorum, they might fool somebody.

  25. Buckeye,
    When a Justice is on the circuit making speeches to non-partisan groups, like law school graduation speeches, speeches to civic organizations and even all congressmen as you suggested would probably not lead to any appearance of impropriety. However, when you mention Bachmann’s name, you don’t have to look any farther than her nose. She is a partisan hack and to believe that this session is truly open to all Congress persons would be believing in the Easter Bunny. As Amity and LK suggested, this Whelan character and the organization EPPC are a front organization for extreme right wing Republican policies. This speech isn’t about learning what the Constitution says, it will be what Scalia wants the Teapublicans to think it says. Like his comment that was discussed on another thread, that women aren’t protected by the Constitution from Discrimination. Bachmann just wants to give the tea party folk the idea that she and the rest of the Teapublicans are giving the tea party what they are looking for. A return to the 1950’s.

  26. rafflaw

    I think you are right in this instance. I would think a judge or a justice should only inform when the information can best come from a judge or justice. Others can inform about the constitution specifically.

    All in all it’s probably a good idea to give congress people, especially newies, a good grounding in the constitution, but Scalia’s the wrong messenger for this group.

    Ms. Bachmann is now setting up an organization in Iowa. It just gets better and better. Someone needs to come up with an antidote for inflated egos. Quick!

  27. pete
    1, January 5, 2011 at 10:21 pm
    scalia’s advice: wipe up don’t wipe down

    ===================================================

    lol … very good

  28. Tha assumption that Scalia is a constitutional scholar, or expert, is a patently false one that is ,however, generally accepted. In my opinion one cannot be considered a scholar on any subject if they come at the subject with a pre-determined viewpoint that to them is immutable. It is the difference between being smart and intelligent by my lights. A “smart” person may have a high IQ and be a font of knowledge on a subject or subjects. However, if that “smart” person’s views are not subject to modification as new evidence on a given subject appears then they are in fact riddled with pre-judgments and continue to see any issue through the lens of their own prejudices.

    An intelligent person to me is someone who may begin with pre-judgments as to the facts of things, but is able to modify those pre-judgments as new evidence is shown. They would not be rigidly locked into a particular point of view and therefore
    able to respond to new issues in an analytical, rather than self justifying manner. I think that in usage a scholar would be someone who would be defined as having an open olar despite how much he has studied in the field of law becauseo schand inquiring mind, though I’ll grant that this has rarely been the case in intellectual practice.

    Mr. Scalia, a man with a locked tight mindset, is no sholar despite how much he has studied the law. He is simply a conservative partisan who has evidenced many ethical failings,
    while claiming to be a moral (religious) man. A person’s ability to rationalize/deny their own failings to themselves can be boundless and I’m convinced that he is enormously adept at having little insight into his own (mis?)behavior.

    THe appointment of SCOTUS judges has always had its’ political aspects, but for the most part those appointed had the decency to at least outwardly give the impression of impartiality. Since Scalia’s appointment to SCOTUS this has not been the case
    with him being by far the chief example of lack of impartiality.

  29. “able to respond to new issues in an analytical, rather than self justifying manner. I think that in usage a scholar would be someone who would be defined as having an open olar despite how much he has studied in the field of law becauseo schand inquiring mind, though I’ll grant that this has rarely been the case in intellectual practice.”

    My lack of proof reading evidenced itself in my prior post, the above was the most egregious.

    “able to respond to new issues in an analytical, rather than self justifying manner. I think that in common usage a scholar would be someone who would be defined as having a mind open to ideas modifying/disproving pre-judgments despite how much they have studied the field of law, because they posess an inquiring mind. I’ll grant that this has rarely been the case in intellectual pursuits or even the sciences.

  30. Mike,

    Your second paragraph from your 10:51 post above would eliviate the need for Amendment. Would it not?

    The legitimate meaning of the Constitution must be found in the text of the document itself, or in the sense attached to it by the people in their respective State Conventions.

  31. BBB,
    I wasn’t commenting on the Constitution per se, but on Scalia and the fasle impression that he is a scholar. to repond to you question though my opinion is the opposite. Onecan look at any document and see in it meanings, with which others might disagree. The constitution should be the basis of our system of government, but one must realize that the time and context of its’ writing has drastically changed through the years. Therefore it should be viewed as a statement of general principles that bears modification as times and situations pass. The amendment process is one way that this change of context can be addressed. People such as Scalia and the Fedralist Club have the pretense of being able to interpret the signer’s intent, when in fact their beliefs are merely the result of their own pre-judgments and rationalizations of same.

  32. Mike,

    I respectfully disagree. I think it is the role of the judge to say what the law is, not what it should be. I’ll leave the determination of what it should be to Congress, the States, and ultimately, the people. If the shoe no longer fits, it’s time to buy new shoes (Amendment).

    It is not the role of the Court anymore than it is the role of Congress, to alter that from which they were created. (The Constitution)

    If we permit the Court to view the Constitution as evolving, without Amendment, it would make things that were at one time unconstitutional, now constitutional. The same as it would make things that were at one time constitutional, now unconstitutional. Doing so without any change to the text would render the document so pliable that it can no longer serve as a foundation. Word can then mean anything or nothing at all.

    Madison stated; “[a]s a guide in expounding and applying the provisions of the Constitution . . . the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses” (Farrand, IV, 447-48)

    I agree with James Madison.

  33. “I think it is the role of the judge to say what the law is, not what it should be.”

    BBB,
    The devil is in the details, Certainly Scalia and Earl Warren would mainly disagree as to the meaning of the words of the Constituion. Who would be right and who would be wrong is open to debat with a partisan coloration. We know that the constitution did allow for slavery and in in Brown in 1954 this was in part overturned, utilizing the fourteenth amendment.

    The meanings of words and phrases evolves over time in any language or locality. To me the only rational method, if one hopes to keep justice alive and evolving is to view the Constitution from a dynamic, rather than static perspective. While it is true that change can be made by amendment as you know that process is a difficult one. As for legislative change, while that can be done, it can also be undone by SCOTUS depending on who the majority is. In fact there are many in the Conservative Movement today who would declare the 1964 Civil Rights act unconstitutional, Judge Scalia included.

  34. Does anyone disagree that this is what the law is?:

    In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

    28 usc § 1654. Appearance personally or by counsel

    I just don’t understand how federal courts can possibly issue and maintain NO PRO SE orders.

  35. Mike,

    The Act Prohibiting the Importation of Slaves (1807) was the first step towards the end of slavery. The second was the Civil Rights Act of 1866. That Act was followed up by the Fourteenth Amendment.

    We needed the Fourteenth Amendment because Congress exceeded their power (limited to naturalization) when they created the 1866 Act.

    The only reason slavery survived the Constitutional Convention was that the ratification by the southern states wasn’t likely if the Constitution prohibited slavery. It’s not that slavery wasn’t on it’s way out.

    You say that Justice Scalia would find the Civil Rights Act of 1964 to be unconstitutional. On what grounds do you think he would find it unconstitutional? (I ask this because in his recent interview he clearly stated that Congree had the power to prevent discrimination. “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” If Scalia believes that Congress can prohibit discrimination based on sex, why do you think he wouldn’t think they could do the same based on race?

  36. Antonin Scalia’s approach to the Constitution reminds me of Fundamentalists here in the south, those biblical literalists who claim to believe in the “inerrant” word of God. What this really means is that they pick and choose what is or is not literal. They would deny this, but I have seen it in operation too many times. From this comes the sort of unctuous evil that Scott Peck chronicled so well in his book, “People of the Lie.”

    Scalia applies the Constitution to whomever he likes; the rest can go to hell.

  37. “The only reason slavery survived the Constitutional Convention was that the ratification by the southern states wasn’t likely if the Constitution prohibited slavery. It’s not that slavery wasn’t on it’s way out.”

    BBB,
    I don’t believe the Confederacy thought that slavery was on the way out and in truth while they surrendered, they wound up keeping it alive for almost a hundred more years by the acceptance of the “Jim Crow” throughout the South.

    On what grounds do you think he [Scalia] would find it unconstitutional?

    My entire point on Scalia is that he is neither a jurist, nor scholar, but merely a partisan (and probably a racist/sexist) whose rulings are hardly consistent except in his own partisan way. George Bush’s argument in 2000 was accepted by Scalia on not only a specious basis (irreparable harm) but in stopping the Florida vote he was going against all he purportedly believed regarding States Rights. Where Scalia has a will he will find a way to justify any of his prejudices.

  38. Mike S.,

    A while back I recommended Bill Moyer’s book “Report from Philadelphia” to the readers of this blawg. I think you would find it to be an enjoyable read, and I think it would help to explain why I think the Framer’s didn’t want slavery.

    I have enough trouble influencing the future to ever attempt to undue the past. I accept it as it was.

    Bush v Gore:

    Since Justice Scalia did not submit a separate concuring opinion, but joined Rhenquist and Thomas, I have to ask; Why single him out? More importantly, instead of just not agreeing with the whole of the opinion, what specific reasoning did you find objectionable?

    I will tell you that I did not vote for Bush in 2000, but I do agree with the conclusion of the Court. The part I wrestle with is jurisdiction and comity.

    “Where Scalia has a will he will find a way to justify any of his prejudices.”

    If we’re being honest; Don’t we all?

  39. BBB,

    Yes. I justify my prejudice(s) against prejudice by observing the damage prejudice(s) have done, done in the directly observable sense, to everyone I have ever known or have heard of.

    Being prejudiced against prejudice grants to me the incapacity to be prejudiced against people or their actions.

    As an exercise of the incapacity to be prejudiced against people or their actions, I am unable to blame anyone for anything; because, to blame someone, I would have to prejudge their actions after the fact.

    Perhaps someone here will help me by truthfully informing me of what it is that I am doing wrong, so informing me without prejudice, and without prejudice after the fact.

  40. Wow…one usually understands the topic at hand…now Scalia…being a pompous ass…does not have to have any understanding of the subject at hand…he is after all an appointee of the Administration….you see you need nothing more than party affiliation to be correct…What Would Ronny Do?

  41. “A while back I recommended Bill Moyer’s book “Report from Philadelphia”…….. and I think it would help to explain why I think the Framer’s didn’t want slavery.”

    BBB,
    I certainly like Moyers and will add the book to my already voluminous “To Be Read” list. I must admit I’m skeptical though of most popular histories. Delores K. Goodwin’s book on Lincoln’s cabinet was ultimately a puff piece that within itself added strained reasoning to prove her pre-conceived and to me ultimately fallacious reasoning. Nevertheless I like her also.

    However, I don’t disagree that many of the Founders were opposed to slavery. They made a compromise in order to get the Constitution ratified. It was an immoral compromise that disrupted the internal intent of the document and one that inevitably led to disaster.

    “Since Justice Scalia did not submit a separate concuring opinion, but joined Rhenquist and Thomas, I have to ask; Why single him out?”

    Rhenquist and Thomas were hacks and neither was, nor was considered to be, Constitutional scholars. Scalia is the man who purportedly supplied intellectual conservative depth to SCOTUS. While Rhenquist held the title, Scalia in my opinion was the de facto Chief Justice when a Conservative majority was achieved on the Court.

    “what specific reasoning did you find objectionable?’

    The Florida election was rife with misbehavior that gave many
    reasons to suspect the official vote count. The Florida Supreme Court ordered the recount which I think was reasonable given the circumstances and SCOTUS interfered with the State Courts orders on the specious grounds that the recount would do
    irreparable harm to G.W. Bush, thereby giving him the election.
    They then inserted the caveat that this decision was not to be considered as precedent, which was suspicious to say the least.

    There was no urgent need to stop the re-count save for the need to prevent the full story of the various ways in which the election was stolen in Florida. Of course you may validly argue that this was hardly the first stolen Presidential election in US history and I would agree. However, the excesses that followed in the wake of that election, due to its’ result, have been such that our entire political/economic system may have been destroyed. I can’t forgive or forget that.

    “Where Scalia has a will he will find a way to justify any of his prejudices.”

    If we’re being honest; Don’t we all?”

    I think I am honest with myself, brutally at times and I believe that through constant self-testing of my beliefs I weed out my pre-judgments and change my opinions based on new evidence. For instance I was one of the vociferous and early supporters/defenders of Obama on this site. I was wrong in placing any faith in him and my subsequent writings have shown that I’ve seen the error of my ways.

    I think that the separation between ignorance and intelligence is the ability to react to new evidence from ones environment.
    I make the effort to do so. I must add the caveat that the above is in no way referrant to you or your opinions because I find you reasonable in your arguments in most instances. It is merely a belief in how one should live their life, which I also agree might possibly be self-delusion on my part.

  42. Mike S.,

    “SCOTUS interfered with the State Courts orders on the specious grounds that the recount would do irreparable harm to G.W. Bush, thereby giving him the election. They then inserted the caveat that this decision was not to be considered as precedent, which was suspicious to say the least.”

    Can we please stick to the facts of the case/opinion? The phrase “irreparable harm” does not exist in the Court’s opinion. The word “harm” only appears three times. The place where you will find the phrase “irreparable harm” is in the concurring and dissenting opinions granting the Petition for a Writ of Certiorari. To be fair, here is what Justice Scalia said in his concurring opinion granting Cert.

    “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

    Let’s examine that sentence. “votes that are of questionable legality” are votes that may or may not have been legally cast. I don’t see how anyone would not consider the counting votes that were not legally cast, to be something other than harmful to our election system. Not only to Bush, but the entire country is irreparably harmed by doing so. A cloud has been cast upon the legitimacy of the election, and it has affected the entire country. Even if the Court had not granted cert or rendered an opinion, or rendered that opinion in favor of Gore; the cloud was cast. I fail to see how Justice Scalia can be faulted for that accurate prediction.

    “They then inserted the caveat that this decision was not to be considered as precedent, which was suspicious to say the least.”

    Has the court done that before? The answer is yes. The Court commonly does this in fact-specific constitutional areas such as due process, takings, consent under the Fourth Amendment, voluntariness under the Fifth Amendment. Examples include Webb’s Fabulous Pharmacies, Inc. v. Beckwith (1980); Little v. Streater (1981); I.C.C. v. American Trucking Associations, Inc. (1984); and Lawrence v. Texas (2003). Of those cases, which ones do you find “suspicious”?

    “There was no urgent need to stop the re-count save for the need to prevent the full story of the various ways in which the election was stolen in Florida.”

    The law is the law. The safe-harbor provision of the Florida Statute provided the cutoff date. It, being constitutionally enacted legislation, permitted the goal post to be moved to a specific date. The Florida Supreme Court had no authority to establish a new date. As long as the Legislative Act does not violate the protected rights of the citizens, it is constitutional, and no court has the authority to interfere with that. The law isn’t what makes us feel the best about a situation; it’s what establishes the limits. Those limits aren’t always going to make everybody happy, but that doesn’t stop the force and effect of the law, nor does it relieve the court from having to apply the law as it is written.
    If the law stated that bars must stop serving by 1:00 AM, and all open alcoholic beverages must be eliminated from the premises by 2:00 AM, do you think a court should be able to say the bar can keep serving employees until 4:00 AM? If so, why do we need a legislature to create anything more than vague guidelines? (which would be ruled unconstitutional for ambiguity)

    With all due respect, we all have our prejudices. A good test to see if you understand the point of view of others is to argue on their behalf. I have learned much over the years by playing the devil’s advocate.

  43. BBB,
    You are no doubt correct in some of your assertions and I respect the research you have done to back it up. This contrasts with my reliance upon memory and impression and so would apparently disprove my assertions.

    However, we are discussing this topic at cross purposes. You from the perspective of the legal arguments that can be mustered. Me from my trained analysis of human nature, my experience of living for many years and having thus reached conclusions regarding our political/legal/economic system informed by the voluminous occurence of anomalies, travesties,
    tragedies and inhumanities that I’ve observed through these years.

    You will note that I claim no expertise and offer much of what I state to be my opinion, rather than expertise. There is only the issues/experiences of my career where I can claim expertise. I have some skill in research and so if I chose I could bolster my arguments with copious research to ensure precision of content. However, although this is a legal blog, my nature is such that I don’t wish, on many issues, to invest the time/energy into perfection of my argumentation. I am not a lawyer but spent 2 1/2 years in night Law School, only to be defeated by my inability to understand NYS Property Law and as a hippie my preference for partying rather than studying. I did learn enough, through the haze of my lifestyle, to understand that any good lawyer should be able to competently argue either side of an argument.

    While I respect that ability wholeheartedly, my personal preference (and psychotherapeutic training) is to use my “gut”
    in forming my varied opinions on people and society. Yet I have no problem admitting the errors of my thinking and/or personal opinions when presented with facts disproving them.
    In this instance I believe that Scalia is a viscious hack with pretensions of intellectual strength and that the Florida electoral vote was stolen aided by SCOTUS. While I admit that you have supplied information that does present valid arguments for the position that I’m incorrect in my suppositions, they fail to convince me and I know that there are others with legal expertise who could present arguments refuting your positions.

  44. I sould also mention that I’m going through these comments while watching NFL Playoff Football and so my full attention is woefully lacking, despite my egotistical belief in my multi-
    tasking abilities. In that vein let me finish by stasting:
    GO JETS!

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