Writing at The New Yorker, Jeffrey Toobin provides some helpful pushback against the nauseating wave of Scalia hagiography:
Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.
His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, “Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” He went on, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.”
Well said! I also liked this:
Even Scalia's ideological allies recognized the folly of trying to divine the “intent” of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
Oh snap!
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Well said. The death of "original meaning" jurisprudence will be the salvation of the Rule of Law.
I liked the article, though I disagree with Toobin's estimation that "the chances of a confirmation before the end of Obama’s term appear to be close to nil." AIUI not once in the history of SCOTUS confirmations has a party been able to hold out for 11 months; the longest hold out has been something like 5. So I give Obama pretty good odds of getting someone through.
Its also worth noting that Class III (the one up for reelection this year) contains 10 Dems and 24 Rebs. I suspect that a lot of those 24 Rebs are going to view an 11-month stall the same way they would view a budget shutdown; personally bad for their reelection chances, regardless of how it might serve their party. With the current 54-44 split it would only take 6 'defections' to give the Dems a majority, and I suspect they will get 6 before November rolls around.
Heck we can even make some tentative predictions, based on the idea that the GOP senators in swing or blue states will be most vulnerable. That would include Ayotte (NH), Johnson (WI), Kirk (IL), Portman (OH), and Toomey (PA). That's five* GOP senators right there who are (a) up for reelection this year (b) in blue or purple states; they only need one more Class I or II Senator from a blue or purple state and they can field a majority.
*There's actually a 6th GOP Class III Senator from a purple state. But it's Rubio, and I expect the odds of him switching are zero because of his Presidential run.
The people who bought Scalia's "originalism" BS are the same people who buy Ham's biblical literalism BS. It is cheap ploy to sidestep having to justify your opinions. Nonsense on stilts.
I take Scalia and Ham as sincere in what they claim(ed) to believe. In Scalia's case he seems to have been a devoted social conservative who thought of the Federalist era as a lost Golden Age and that he could actually divine the unstated intentions of the long-departed regarding modern questions.
"Originalism" is bull shit, but it was not an attempt to sidestep, but to channel selected dead Framers to get their take on stuff they never actually heard of.
In that sense, originalism is not bull shit, it's insane.
sean s.
Appeals to authority - always a way to sidestep justifying your beliefs. If Scalia actually did believe that - he was an idiot. Is that what you believe?
The Human Toll of Antonin Scalia’s Time on the Court
hat tip: Ed Brayton
Am I allowed to post?
On some matters Scalia was brilliant and on others he was a fool. That's not all that unusual.
Scalia's attributes are a distraction; what matters is that Original Meaning or Original Intent are incoherent legalistic sorcery without much rational merit (if any).
sean s.
Just don't be obsessive about it. Leave a few comments and then let it go.
“Chief Justice John Marshall read the NEW Constitution to allow for a vibrant and progressive federal government.”
I would like to know what Jeffrey Toobin means by the “NEW Constitution”.
I would consider a constitution new if it was newly “born” or if it was extensively rewritten or *amended* by the *Legislature*.
I guess what Toobin means is that appointed Supreme Court justices should be essentially the same as populist politicians or elected legislators:
“The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming."
Justice Scalia, R.I.P.
https://www.youtube.com/watch?v=DTRe5xDLfXw
P.S.
In any case, at least Joe Biden and Chuck Schumer are all for denying an up/down vote to a President’s SCOTUS nominee in an election year. These powerful Dem figures give the current GOP-majority Senate some cover for stonewalling any Obama nominee.
LOL, no, Marshall was appointed to the Supreme Court in 1801. At that point the Constitution was a mere 13 years old, having been ratified in 1788, ergo, the new Constitution. But its interesting to see that your understanding of history is on par with your understanding of science LOL.
Haven't seen Schumer's past quote, but if you are as dishonest about his as you are about Biden's it would be all too typical for you.
Dean - Schumer appears to be much more of a flip-flopper on the issue since his call was 18 months (!!!!) before GW Bush's exit, as opposed to the current 11 months with Obama or the 6 month range Biden was in when he made his comment.
But frankly, I'm perfectly comfortable with saying that they are both partisan hypocrites whose positions on proper procedure flip depending on who is in office. Its not like its that unusual. I'm sure loads of Dems who have threatened or actually used a filibuster will pound their chests and wail 'unfair' when (not if, when) some GOP Senator suggests filibustering Obama's nomination. And I have no problem saying these Democrats are wrong. It was wrong to claim even in theory that President Bush should not nominate a person when he was 6 or 18 months away from the end of his term, and it is wrong for GOP Senators to claim that now. It is wrong to threaten or use a filibuster against senate opponents but then claim it is politically verboten when your opponents use it against you. Obama has the constitutional right to nominate. There's something like 5-6 precedents of other Presidents nominating SCOTUS candidates within the last year of office, so its not really unusual at all. GOP senators should of course feel free to voice their non-consent on a candidate, but IMO claiming such nominations are somehow procedurally unfair or ahistorical is just partisan-motivated boldfaced lying. Its lying if Biden does it, its lying if Schumer does it, and its lying if McConnell does it.
To eric #11:
Me: “I would like to know what Jeffrey Toobin means by the “NEW Constitution”... I guess what Toobin means is that appointed Supreme Court justices should be essentially the same as populist politicians or elected legislators.”
You: “LOL, no, Marshall was appointed to the Supreme Court in 1801. At that point the Constitution was a mere 13 years old, having been ratified in 1788, ergo, the new Constitution. But its interesting to see that your understanding of history is on par with your understanding of science LOL.”
LOL.
I guess if Jeffrey Toobin writes about The Affordable Care Act (aka Obamacare) in, say, the year 2023, he’ll refer to it as the NEW health care law.
Re: Schumer:
http://talkingpointsmemo.com/edblog/lol-has-anyone-looked-at-what-schum…
To Another Matt #15:
“What Schumer actually said was that… Democrats should try to block any future Bush nominees unless they could prove that they were ‘in the mainstream’ and would abide by precedent.”
You left out what Josh Marshall said after that, namely, “Now, 'mainstream' is a subjective rather than a technical term.”
And I would add that if 'abiding by precedent' was so Supremely sacrosanct, we might still have slavery (i.e. SCOTUS’ infamous Dred Scott decision).
Anyway, here’s a video of, I think, ALL of Schumer’s 2007 words, plus the decidedly different signals he's giving today:
http://www.cnsnews.com/news/article/eric-scheiner/schumer-07-we-should-…
SN has evidently discovered the new, world-shaking revelation that elected Democrats can be just as partisan and hypocritical as elected Republicans. Yep, they can be. But this is not a cogent argument against appointment. Do you have a cogent argument against appointment, or is "look, Dems behave badly too!" all you've got?
eric:
Interesting - I agree with your appraisal of schumer. My point was that since sn
a) has a history of never telling the truth about anything
b) lied about what Biden said
c) I wasn't aware of Schumer's statement
it was reasonable to me that he was also being dishonest about Schumer. It still looks like he was marginally on mostly off about Schumer.
Link to Ronald Reagan demanding the Senate confirm his final-year appointment (Justice Kennedy, in 1988. Obviously, they did).
To eric:
1)
Do you agree with statements made here that I “lied about what Biden said”?
If you DISagreed, why didn’t you send a nasty gram to the responsible commenter, the way you do to me when you disagree with me?
Is it because you don’t attack those who appear to be on your side of the political spectrum, no matter how ridiculous or reprehensible their remarks?
2)
You asked me: “Do you HAVE a cogent argument against appointment, or is “look, Dems behave badly too!” all you’ve got?”
How about this:
I would argue against appointment of any nominee who has not consistently demonstrated in the past, and vowed in the present, a commitment to adjudicate based on the Constitution’s *text* and the text’s *original* intent. I would argue against the appointment of any nominee who disagrees with, for example, Scalia’s positions here: https://www.youtube.com/watch?v=DRKgOjNPxIM
(I might also argue against appointment of a nominee by Obama as some measure of payback for all of Obama’s actions – variously illegal, un-Constitutional, socialistic, and deliberately divisive. Besides, an 8-person SCOTUS can still do business. In its early years, the Court had only 6 justices.)
"variously illegal, un-Constitutional, socialistic, and deliberately divisive"
Of course, you'd have to provide evidence that those are true rather than stating your opinion.
So the original writers of the US Constitution actually believed "corporations had the same rights as individuals" when corporations as we know them didn't exist? They believed "money was speech"? How do you think Scalia would have ruled had the founders believed that Catholics didn't have freedom of religion? That it was just meant for Protestants? What if they believed that all citizens should own a gun and be required to perform military service? Why wasn't Scalia ever in the military? Why didn't he serve in Korea or Vietnam?
Why would anyone hold the views of the writers as sacrosanct when they believed that one human could buy, sell and own another? When they viewed woman and non-property-owning males as non-citizens?
The truth is closer to the reverse; the founders did not believe that the US should even have a standing professional army; they thought such a thing would be a danger to the country and a drain on productive labor. Of course since the overwhelming majority of 'originalists' today being hawkish pro-military conservatives, they tend to ignore that.
See Noevo--
Remember when I said don't be obsessive? You've said your piece, now don't comment further in this post.
But they certainly believed that they should be able to conscript men when needed and force them to serve....
Regarding: I would argue against appointment of any nominee who has not consistently demonstrated in the past, and vowed in the present, a commitment to adjudicate based on the Constitution’s *text* and the text’s *original* intent.
The problem with this standard is that the text is the only one of those we have actual access to. Figuring out “the text’s original intent” is sheer voodoo; it requires channeling the dead. Unsurprisingly, those exercising this mystical power discover that the original intent closely matches their own prejudices.
The recent dust-up regarding same-sex marriage is illustrative. The text is quite clear: “No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.”
Yet Scalia et al. had no trouble manufacturing an “original meaning” which turns the plain text on its head. Seeking after and holding on the basis of some “original intent” is a lawless act.
sean s.
To Jason #25:
“Remember when I said don’t be obsessive? You’ve said your piece, now don’t comment further in this post.”
OK. Done.
(I hope the same goes for eric (7 posts), dean and Sean and Michael (3 posts each).)
Touché.
I suppose we all should let this one go.
sean s.
For now. But the fun is just starting; regardless of whether the GOP is able to stall the nomination or not, I'm absolutely sure Obama will put someone forward. Then...let the games begin!
I have yet to see a commentary on Scalia which was positive. I am sure there are many, especially at conservative sites, but those I have read at "Crooked Timber", "Grasping Reality", "Lawyers, Guns, and Money", "Recursivity", "Balloon Juice", and here have all been very negative.
Personally, up to but not including Bush v. Gore, I think his point of view was one that could be tolerated on the SC as representative of a segment of the population which deserved someone to fight their corner, but as part of a conservative majority (especially one including Alito) he became toxic. That is, I have come to see the court as a partisan arena in which fairness is subjective (to both sides, in varying degrees), so that the best that can be hoped for is that the sides are weighted in accordance with demographics. Whereas the extreme views of the conservative side are not what the majority of the country hold.
President Obama was twice elected by the American people and has the right and duty not to leave the SC in a 4-4 stalemate for eleven months before even starting the often-lengthy nomination and approval process. The Republicans in the Senate will be derelict in their own constitutional duties to not even consider a nominee, as they have threatened. Others have noted that several of the Republican senators are up for re-election and are also "lame ducks" but this does not (nor should) prevent them from voting on important issues.