July 22, 2013

"Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, 'the most advanced country in the world.'"

"One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected 'the spirit of the age.' When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble."

The Aspen Times reports. That's linked in the NYT, by Juliet Lapidos, who says "Justice Scalia brought Godwin’s Law to Snowmass, suggesting in an address to the Utah State Bar Association that activist judges helped bring about the Holocaust."

Was Scalia within Godwin's Law? At The Atlantic, Abby Ohlheiser says he "approaches Godwin's Law," and takes the trouble to explain the law: "Eventually, as Godwin's law scholars are well aware, any online discussion will produce a comparison to Hitler or the Nazis."

Here's the Wikipedia article on Godwin's law. Excerpt:
Godwin's law applies especially to inappropriate, inordinate, or hyperbolic comparisons of other situations (or one's opponent) with Nazis – often referred to as "playing the Hitler card."...
While falling afoul of Godwin's law tends to cause the individual making the comparison to lose his argument or credibility, Godwin's law itself can be abused as a distraction, diversion or even as censorship, fallaciously miscasting an opponent's argument as hyperbole when the comparisons made by the argument are actually appropriate.
So: Was Scalia's reference an exaggerated playing of the Hitler card or are his critics guilty of abusively invoking Godwin? I wouldn't answer without the full transcript of the speech. It would also be interesting to know whether these Godwin-invoking critics, who also don't have the transcript, just don't like Scalia anyway.

ADDED: An emailer who attended the Scalia event puts the remarks into context and makes the NYT and others look quite foolish for handling this matter the way they did:

I heard the entirety of Justice Scalia’s talk.  The Nazi discussion consisted of some unprepared remarks that he made at the beginning of his speech.  The context is vital. Here is the Utah State Bar Summer Convention agenda.

As you can see Justice Scalia was the principal speaker on Saturday morning—Day 3 of programming.  On Friday morning (Day 2 of the meeting), the principal speaker was Dr. William F. Meinecke of the Holocaust Memorial Museum giving his presentation “Law, Justice, and the Holocaust:  How the Courts Failed Germany.”  It is a fascinating presentation of how the Nazi party co-opted the Courts and lawyers to further its agenda against the Jews and used the judiciary to “legalize” its conduct.

Justice Scalia opened his remarks by noting that, at the previous evening’s Utah State Bar’s Past Presidents Dinner, there had been a great deal of discussion about Dr. Meinecke’s talk. Justice Scalia then indicated that, prior to beginning his prepared remarks, he had some observations about Nazi Germany and the law.  He observed that Germany in those times was “the most advanced country in the world” citing its sciences, philosophy, music, and theater (and probably some other examples).  He commented that the Nazi agenda was assisted by judges who read laws that facially would have outlawed certain abuses not as written but “in the spirit of the times.”   He did not call any judge “Hitler” or a “Nazi.” 

While the Nazi discussion did weave into his prepared remarks of about judicial “mullahs," he offered a single conclusion that is unreported by the press account before he commenced his planned speech.  He stated that educating to improve intelligence or advance culture was not education’s highest calling.  Rather, he contended that pinnacles of intellectualism, culture, and learning were meaningless unless education also instilled “virtue.”  His position was that the lack of virtue in the German elite (who were as cultured and educated as any group in the world) was their failing when confronted with the evil of the Nazis.
ADDED: The emailer is Drew Cloutier.

UPDATE: The NYT piece now has an update, linking to this post.