Rick writes:
No one asked Justice Scalia -- after his address in which he re-affirmed his view that original-meaning textualism is the best approach to constitutional interpretation -- about Professor Randy Barnett's charge that the Justice is a "faint-hearted originalist."Doesn't Scalia call himself a "faint-hearted originalist"? I don't have my notes from the time Scalia gave a speech at the University of Wisconsin Law School, but I think he owned up to the term. I'll check the notes later.
Anyway, I'm not surprised that no one asked Scalia a challenging question. The Federalist Society provides a well-cushioned cocoon for him. Yet he does just great when confronted with a questioner who really hotly opposes him. You should have heard him tangle with some of my colleagues. It was quite cool. I prefer an event with more friction!
I mean, I see the point of The Federalist Society. It's a very effective political organization that supports and encourages young conservatives in the law. I appreciate the way it emboldens conservative students to express their opinions in the classroom. (When I went to law school, the classroom discussion was boringly one-sided.) But, intellectually, originalism, unchallenged, is tiresome.
That doesn't mean it's wrong. Maybe judges should work hard and selflessly at a job made boring by intellectual abstemiousness. But if they are going to talk about it to a nicely nodding group, well, for me, it's a strange environment.
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Originalism: The Lesser Evil
"Having made that endorsement, I hasten to confess that in a crunch I may prove a faint-hearted originalist."
Maybe judges should work hard and selflessly at a job made boring by intellectual abstemiousness. But if they are going to talk about it to a nicely nodding group, well, for me, it's a strange environment.
Quite apart from the intellectual content, I think the FedSoc is often a little too choir-preachy, to tell the truth. I agree with the basic idea, and with the substantive ideas of some of the more conservative wing of the society, but . . . I attended a talk where Meese was talking, and even when I agreed with him he larded it up with so many Clinton jokes that I felt, honestly, a bit uncomfortable. I thought Clinton was a mediocre president, even by contemporary standards, but he'd been out of office for four years by that time. And they were still cracking (and laughing appreciatively at) Clinton jokes. I thought it was rather sad.
I don't think there were any jokes at all at the Milwaukee conference. Someone might have repeated a gentle witticism once made by Rehnquist, but there was no political humor. There was, in fact, a lot of emphasis on how nice and friendly all the justices were with each other and their clerks. It was exceedingly mild mannered.
Ziemer: Surely, The Federalist Society is capable of staging more vigorous events. Scalia's appearance at my school was done by The Federalist Society. And anyone could have gone to the Milwaukee event and challenged Scalia. It was open to the public! This event was unusually mild, I think, because so many people were inclined to celebrate Rehnquist. I think the Federalist Society's greatest function is to vitalize debate -- in the law schools. I love the way they've done that. It's been a great help. I like vigorous debate, not emotional confrontations.
You ought to come to the national annual conference. The panels are usually larded with some fairly staunch liberals, and when you get a less homogenous group - which the national conference really is - the questioning is a bit hotter. The libertarian Fed Soc-ers often put the social conservative panelists on the spot, the social conservatives go after the liberals & libertarian panelists...
Well, "go after" is a relative term. It is less polite than Supreme Court argument, but more polite than state district court argument, tougher than Larry King, but doesn't rise to anywhere near the level of Chris Matthews.
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