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Sunday, February 14, 2016

SOME LONG HELD THOUGHTS ON JUSTICE SCALIA AND THE APPOINTMENT OF A NEW JUSTICE

Two borrow a quote from  Justice Scalia, many judges come to the court as a wolf in sheep's clothing. Judge Scalia came to the court as a Wolf in Wolf's clothing. 

Our main fault with Justice Scalia is his long held philosophy that he is (using his own description)  a "weak originalist." In explaining this definition he gave himself, Scalia said he was an originalist in interpreting the Constitution right up to the point where following his philosophy would make him look "like a nut." As he then explained, "I am not a nut." One cannot have a philosophy only when it is convenient. It either works and its adherents are consistent, or it does not. 

No he was not a nut. But more troubling, he was not intellectually consistent. Scalia championed the originalist philosophy of interpreting the constitution so that there would be an intellectual basis for decisions now, and decades from now. Scalia, properly so, didn't want the constitution interpreted by the current whims, morals, or values, of un-elected judges

And yet, when his originalist philosophy failed him- and it would time and time again- Scalia was, like all the judges he decried, nothing more than an un-elected moralist in a robe.

Scalia could hardly defend originalist interpretation when challenged with the Constitution's acceptance of slavery and the diminishment of black people as less than 100% human, entitled to none of the rights and privileges of their white counterparts. And accepting the philosophy of interpreting the Constitution by what the founders accepted means accepting slavery, hanging, whipping, keelhauling,  segregation in general and segregated schools in particular, and locking people in stockades in public squares. 

So much then, for originalism. Accepting originalism was merely choosing one moment in time as the bedrock for analyzing phrases in the Constitution. It didn't have to be at the moment of conception, it was just more convenient for Scalia to pick that moment. Any moment in which the mores of the country could be determined would suffice. 

And originalism fell by the wayside when it came to politics (Bush v. Gore) and his Catholic faith, which ruled his judicial philosophy. Recall that when sodomy laws were struck down, he ominously (and correctly) predicted  that the court would find the right for  homosexuals to marry. Homosexuality in general, and homosexual marriage in particular, were an anathema to his strict Catholic faith. And far from being a friend to defendants, one can feel secure Justice Scalia would have lost no sleep in millions of Americans being locked behind bars for the crime of homosexuality. In an earlier time, Scalia would have defended anti-miscegenation laws which were successfully challenged before the court- as mixed race marriages were considered unlawful by the founders (which didn't stop some of them from having black mistresses).  

To quote Marco Rubio, make no mistake that Justice Scalia didn't know what he was doing. He knew what he was doing. He was employing a narrow and flawed judicial philosophy where it suited him, and he abandoned in and became a robed and un-elected moralist when the result in a case suited him. 

To the intellectual conservative moment who understands the crucial need for a consistent philosophy that works, Scalia stands as no hero. He merely was the same altruist, collectivist, statist, whose ox was less gored than most. 

That Scalia is being mourned as a giant of judicial philosophy is just an indication of how far removed we are from having judges who understand the meaning of the term. 

See you in court. 

Coming Next: Why President Obama MUST nominate a judge to replace Scalia. 

8 comments:

Anonymous said...

Only one guy in the courthouse is smart enough to write this. And we all know who the big guy is. Well done.

Anonymous said...

This is where pseudonymity fails the blog. You hang much (all?) of your critique of Scalia on the claim that he merely dressed up religious conviction as rational argument.

Yet this very post of your own presents itself as rational argument, when the poster's ethnic/religious identity is what is really at play.

I don't disagree with you about Scalia. But I hope your penetrating gaze works in the mirror as well.

Rumpole said...

You've missed the point of my critique. I am not disparaging Scalia's religious beliefs. I am disparaging his contention that his entire yardstick for interpreting the constitution was originalism. It was not. Much of what he did was influenced by his views on what the founders thought and believed. But some of it was based on his conservative political beliefs (Bush v. Gore) and his religion. What I find fault is his carrying the banner for a philosophy that he did not fully follow.

The Professor said...

The issue: Should President Obama make a recess appointment to SCOTUS.

What is a recess appointment? They are specifically permitted under Article II section 2 of the US Constitutional:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions, which shall expire at the end of their next Session.”

Being true to what observers have stated about Justice Scalia’s constitutional philosophy regarding the intent of the original framers, one only has to look to Alexander Hamilton’s Federalist Papers:

“The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay . . .”

All presidents have made recess appointments, even in election years. Justice William J. Brennan was appointed to SCOTUS by President Dwight D. Eisenhower (a Republican) in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year. Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session.

There should be no delay in filling this vacancy. SCOTUS has before it cases upon which the decisions may have precedent for decades. Matters relating to women’s reproductive rights, voting rights, public employees labor rights and most importantly the legitimacy of Presidential Executive Orders on immigration and other matters.

Yes, whoever takes the seat may find himself or herself out as early as next January, but think about the ability to frame constitutional law for generations to come. I don’t know many who would say no to that opportunity, even if it were as a sacrificial lamb. We are not only talking about cases this term, but some that will be heard early next term.

I understand the downstream consequences to the Democratic candidate this fall, but some things may be more important. Additionally, there a large number of Republican Senators from purple states who will have to deal with the issue in their re-elections. The defense of a recess appointment could energize the democratic electorate, especially if important decisions go the liberal way and also need to be protected. That could swing the Senate to the Democrats and assure the appointment will stick.

Conclusion: President Obama should take McConnell and Grassley at their word, and determine that he will never get a nominee through before the election, and make the recess appointment now.

Anonymous said...

Brilliant post and an accurate reduction of the Justice. Wonderful and interesting writer but a political hack nonetheless. To quote the philosopher Costanza "Not that there is anything wrong with that."

Anonymous said...

I didn't realize it was a tenet of Catholic faith to permit the democratic process to decide whether to adopt radical social changes that would reverse precedents and ideals in place for hundreds of years. I also thought the meaning of "original" was pretty commonly understood. Thanks for correcting me.

Anonymous said...

Really, Professor? Afte get get slapped down by the Supreme Court 9-0 last time he made recess appoinmtments you think it's good idea? You're a hack.

Circle K

The Professor said...

Answer - the court determined that the White House had created the recess, when the Senate was not. Here they are recessed by their own motion. They are clearly in recess. I don't think they would even be able to timely entertain any suit to prevent the new appointee from taking office. But circle your K and I will keep hacking along.