March 30, 2006

"The growing interest in making Scalia newsworthy reflects a change in the political fortunes of liberal causes and of the Democrat Party. "

Ronald A. Cass decries "Stalking Scalia."

(If that phrase is making you picture Scalia lumbering along after you, please clear that image from your mind. The American jurist is the stalkee.)

19 comments:

Balfegor said...

In fairness, conservatives are trying to do the same thing with Ginsburg. I don't think it's new and sinister, particularly -- just another outgrowth of the politicisation of the court.

admin said...

Boo hoo. Live by the cult of personality, die by the cult of personality. Conservatives have been evangelizing for the Church of Nino too hard for too long for me to take this seriously.

Too Many Jims said...

I agree that Dems need to digest the fact that "elections have consequences" and that the pursuit of Nino may be a symptom of that.

However, for the "right" to warn about politicization threatening "the independence of the courts" is quite disingenuous in light of how various factions of the "right" have conducted themselves with regard to the Schiavo matter, Justice Sunday (I & II), and the project to take Souter's house (among other items).

Serenity Now said...

In fairness, conservatives are trying to do the same thing with Ginsburg.

Examples?

Goesh said...

Yes, he does appear to be getting a might hefty for slinking and stalking

Balfegor said...

Examples?

If you just read NRO's Corner (and, I think, their associated legal blog, "Bench Memos") regularly (as I do) they're always gunning for her whenever she appears in the news.

Wade_Garrett said...

Scalia has taken the cult of the personality to a level previously unreached by any Supreme Court justice. Not only is he sarcastic, but he condescends to his fellow justices in a way that ticks me off. Of course, as soon as Chief Justice died, Scalia began popping up at every Georgetown dinner party and acting on his best behavior. Well, For twenty years his acerbic style won him fans in conservative circles across the country, and now its coming back to hurt him -- he was passed over for Chief Justice because of it, and now liberals look closely at everything he says for the slightest display of prejudice. That's just how it works.

jeff said...

When Ginsberg goes outside the country and talks about applying foreign laws in her decisions, that's definitely something worth discussion. She's supposed to use the US Constitution as her guide, not the latest insanity out of the EU...

When she falls asleep on the bench, it's worth sending her a bottle of Jolt cola... :-)

SteveR said...
This comment has been removed by a blog administrator.
Aspasia M. said...

I do think it's really funny that Scalia is trying to sell:

Va a fare in culo as a phrase that's not vulgar.

And, let's face it, Italians are much better at insults then Americans.

Ann Althouse said...

Geoduck: Since Sweet (the reporter) doesn't say he said that, I think his position must be that he didn't. Funny that the language part is only coming out now that the paper got embarrassed over the reporting of the gesture. I just don't believe the photographer. (This is discussed in yesterday's post on the subject.)

Simon said...

There is some fuss - see reporting here that Scalia should recuse in Hamdan. As the article Ann links suggests, the whole business is in danger of becoming absurd.

A year or two back, I read an article which, in scrupulously non-partisan terms, argued that four Justices in Bush v. Gore should have recused themselves. This was in a liberal-leaning journal, and so it will come as no surprise whatsoever that the four who the author thought should have recused all happened to be on the same side! And guess what - it wasn't Gore's! That's right, by sheer mind-boggling co-incidence, the only member of the Bush majority who should even have heard the case was Tony Kennedy, and one suspects that the author only neglected to cook up a ludicrous reason for Kennedy to recuse was because it would be too nakedly partisan to remove ALL of the majority. Like Mark Tushnet's ridiculous arguement a few years ago that any 5-4 in which Thomas cast the deciding vote should be considered to be no precedent, this ridiculous wrangling over recusal would destroy the Court. There is simply no limitation on the principle: if a 5-4 where Thomas cast the deciding vote because Mark thinks there's something objectionable about Justice Thomas' confirmation hearings, why not say that any 5-4 where Kennedy casts the deciding vote is void, because Kennedy only got his seat after the Bork hearings? Hell, you could strike out the entirety of the Lawrence majority for violating the terms of their oath of office. Even if you don't agree with these examples, you'll surely see where this logic will get us. If we play the "Justice X should have recused / never been on the Court in the first place" game, someone who doesn't like the decision will always be able to find something to use in validating their refusal to accept the result.

Which brings us to Hamdan. The argument goes like this: Scalia gave a speech which indicated his opinion of the surrounding law, and that means he said how he might rule in the case, so he should recuse. That, believe it or not, is the length and breadth of the argument. The people jumping on this bandwagon point to Scalia's recusal in Newdow. This is a ridiculous standard; Scalia should not have recused himself in Newdow, and he should not recuse himself in Hamdan. As a commenter at SCOTUSblog pointed out, there can surely be no serious argument that there is any doubt about Justice Scalia's or Justice Ginsburg's opinion as to the existence (or lack thereof) of a constitutional right to an abortion - should they have recused themselves from Ayotte? Justices Brennan and Marshall spent most of the 1970s and all of the 1980s believing that the death penalty was per se unconstitutional. Their votes could scarcely be considered unpredictable in any capital case that came before the court. Should they have recused themselves from every capital case before the court, since their mind was made up without reference to the particulars of a given case, long before briefing and argument? And, if the memory serves, the incident which resulted in Scalia's recusal in that case said little that Scalia had not already said in his Lee v. Weisman dissent, a dissent which I refuse to believe that a partially educated soul could read and leave with any doubt that Scalia doesn't believe that the pledge of allegiance is unconstitutional.

In my (admittedly still unsettled) view, a Judge should recuse themselves when they personally stand to gain from the outcome, or when they cannot be impartial towards the litigants as opposed to the body of law (that is, if Michael Newdow had killed Scalia's cat, it might have been reasonable to ask Scalia to recuse, but not just because Newdow brought up a legal point on which Scalia had known opinions), or in extraordinary cases (for example, our Fearless Leader's Hamdan recusal, wherein to sit on the case, he would have to review a judgement in a case he had participated in on the lower court).

Lastly, it will come as no surprise to anyone that Terry's comment (that Scalia was passed over for chief justice because he makes speeches) is among the silliest things to emerge from this whole mess - Scalia was never in contention for Chief Justice, and I have little doubt that he was well aware of that. The choice of John Roberts - a man in his early fifties - made clear that Bush was looking for a man who would be on the court for a generation, while Scalia - an Italian-American smoker who just turned seventy a few weeks ago - has maybe another ten or fifteen years on the Court, if we're lucky. If you want someone to blame for the fact that there was never a Chief Justice Scalia -- and strangely enough, I think most people should be very glad of that, although for very different reasons depending upon whether they like him or not -- blame the people who voted for Ross Perot. I suspect that Rehnquist would have been perfectly happy to retire in the mid-90s under a President other than Clinton.

Gaius Arbo said...

I just posted on almost the same point, Ann. Funny the language thing is only coming out now.....

The irony should be apparent. The Herald ran a story that contained a lie, then published photographic evidence that they had indeed lied, and now are piling on another charge that their own reporter did not witness.

Thanks for the link, Ann. I would have pinged you if Blogger supported that.

Verification word jaufoo - Sicilian for "lying newspaper"

John in Nashville said...

With regard to Justice Scalia's participation in Bush v. Gore, please recall that his son's law firm represented then-Governor Bush. That alone would have justified recusal. A 4-4 split would have let the Florida Supreme Court's interpretation of Florida statutes stand.

Simon said...

John,
I just drove through Nasville yesterday - a beautiful city, but navigating around that interstate is a pain in the ass.

In any event:
"[W]e do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court." Supreme Court Statement of Recusal Policy, 114 Supreme Court Reporter (orders section) p.52 (1993). One of the interesting things about reputable legal practise (that is, outside of the bloodsucking personal injury context) is that the law firm tends to get paid regardless of outcome, and in any event, lawyers who simply work on the cases certainly tend to get paid either way. Since I doubt that Scalia's son stood to materially benefit either way (and stood to lose no more than 280 million of his fellow citizens had Gore won), and in any event, the father is not the son, I really don't think that it makes any odds.

CB said...

Liberals who dislike Scalia should probably be glad that he stakes out strong positions and is abrasive toward his fellow Justices. I would guess that this makes it harder for him to gather a majority to his side.
I'm sure someone has crunched the numbers as to whether Scalia is more often in the majority or dissent. Does anyone know what those numbers are? (I'm sure it's complicated by the concurrences and concurrences in part, etc.)

CB said...

I retract my suggestion above. Based on some cursory research and number-crunching for the past five years, the most-dissenting Justice seems to be Thomas and the least-dissenting, Breyer. The whole Court in order, based on my calculations, goes: Thomas, Souter, Rehnquist, Ginsburg, Kennedy, Scalia, Stevens, O'Connor, Breyer.

Simon said...
This comment has been removed by a blog administrator.
Simon said...

Incidentally, on the topic of recusing because you have a family member who may or may not have a stake in the result, anyone who thinks that Scalia's non-recusal in Hamdan is the big non-recusal blockbuster of the term needs to ask themselves why these people making a fuss in this case said not a word about the impropriety of Justice Ginsburg's failure to recuse herself from a case in which her husband was a party to the litigation. Marty Ginsburg works at Georgetown, who were a part of FAIR. I'm not saying Ginsburg shouldn't have heard FAIR v. Rumsfeld, but I am saying that you can't have it both ways. You can't be a champion of recusal in even the most marginal circumstances when it's someone you don't agree with who you want to recuse, and then give a free pass to someone else because you presume that they're going to rule your way. Nobody said anything about Ginsburg recusing herself, because all the people who yell that mean ol' Nino should recuse himself in practically every case thought that Ginsburg would rule their way in FAIR.