Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

#

Showdown-- Thurgood Marshall and the Supreme Court Nomination That Changed America By Wil Haygood

August 30, 1967 was a very important day in the history of our country. It was the day a reluctant Senate finally confirmed Thurgood Marshall to the Supreme Court. 69 senators voted YES, 11 voted NO, and, crucially, 20 didn't vote. We'll come back to those 20 in a moment. Marshall served on the Court for 24 years, from October, 1976 until October, 1991. He was the first African-American Supreme Court Justice-- and he was no Clarence Thomas (who, hideously, was appointed to his seat by George W. Bush). Marshall was an accomplished attorney for the NAACP with an astounding success rate of arguing cases in front of the Court, including Brown v Board of Education, the 1954 landmark case that discarded "separate but equal" and outlawed segregation in public schools. John Kennedy appointed him to the U.S. Court of Appeals (NY) and then Lyndon Johnson appointed him Solicitor General before appointing him to Tom Clark's Supreme Court seat when he resigned (when his son Ramsey Clark was appointed Attorney General).

So why bring this up now? Not because it's October. Last month Wil Haygood's epic book on the life of Marshall, Showdown-- Thurgood Marshall and the Supreme Court Nomination That Changed America, was published. In his review in the NY Times, David Margolick begins with a showdown between Marshall and 4 racist senators from the Judiciary Committee who were determined to block him from being confirmed to the Supreme Court-- John McClellan (D-AR), Sam Ervin (D-NC), Strom Thurmond (R-SC) and James Eastland (D-MS), the committee chair and the father of Miss Confederacy, 1966. Margolick laments how Marshall's story has been largely forgotten by history, "relegated to the shadow of Martin Luther King Jr.," but is excited that the Haygood book is going to change that. President Johnson:

“Thurgood, I’m nominating you because you’re a lot like me: Bigger than life, and we come from the same kind of people,” he told him. Because there had been no Supreme Court vacancies handy, Johnson, the consummate wheeler-­dealer, fashioned one, naming Ramsey Clark attorney general in order to induce his father, Justice Tom C. Clark, to quit. Johnson could then slide Marshall, solicitor general at the time, into Clark’s slot.

Before that, Marshall had been a federal appeals court judge in New York, begrudgingly named six years earlier by President Kennedy after Marshall had spurned his offer of a seat on the federal trial bench. (“My boiling point is too low for the trial court,” Marshall had explained. “I’d blow my stack and then get reversed.”) That initial offer had come from Robert Kennedy. “You don’t seem to understand,” he warned Marshall. “It’s this or nothing.”  “I do understand,” Marshall lectured him. “You don’t know what it means, but all I’ve had in my life is nothing. It’s not new to me, so goodbye.”

For much of that life, Marshall had been the founder and principal litigator of the NAACP Legal Defense and Educational Fund, fighting, against great odds and at enormous personal risk, to dismantle Jim Crow in Southern schools, courtrooms, lunch counters and voting booths — that is, when he wasn’t struggling frantically to spare individual indigent blacks from the electric chair or the rope. “Folks would come for miles, some of them on muleback or horseback, to see ‘the nigger lawyer’ who stood up in white men’s courtrooms,” an N.A.A.C.P. official would later recall. Not all of Marshall’s beneficiaries, though, were black: By helping to invalidate ­Texas’ whites-only primaries, thereby adding thousands of black voters to the rolls, he helped make Lyndon Johnson a senator.

“He is one of the most distinguished lawyers in the land,” Senator Jacob Javits of New York said in introducing Marshall to the Judiciary Committee. Javits’s words were echoed 24 years later when the first President Bush introduced Marshall’s replacement, Clarence Thomas. But in Marshall’s case, they were true.

In what was really Marshall’s first victory over the segregationist senators, they did not dare challenge his civil rights work. Instead, seeking to exploit concerns about crime — riots in Detroit and elsewhere were taking place during the hearings — they asked him about (and, in effect, blamed him and people like him for) recent Supreme Court decisions expanding the rights of criminal defendants. At one point Senator Ervin, not yet the avuncular figure of the Watergate hearings, complained that the Fifth Amendment was never meant to invalidate “voluntary confessions.”

“Well, Senator, the word ‘voluntary’ gets me in trouble,” Marshall replied. “I tried a case in Oklahoma where the man ‘voluntarily’ confessed after he was beaten up for six days.” The hearings, startlingly unscripted compared with today’s antiseptic proceedings, furnished one of the first debates on originalism-- the idea that the Constitution was frozen in time rather than, as Marshall argued, a “living document”-- and which, in this instance, was the refuge of bigots. They also featured Senator Thurmond trying to trip Marshall up on historical trivia that no one but a specialist, and certainly not Thurmond himself, could possibly have known.

“Are you prejudiced against white people in the South?” Senator Eastland asked Marshall. It was not, as Haygood writes, the “penultimate” question, but it was the ultimate one, and Marshall handled it with aplomb. Shortly thereafter, he was overwhelmingly confirmed, and far more easily than Haygood leads us to expect he would be. Miraculously (though Haygood fails to point it out) only one Republican, Thurmond, voted against him. For all his fears, Lyndon Johnson was famously persuasive (and were Marshall to falter, he even had another black candidate, William Coleman, waiting in the wings). He could also count noses.

An interview with Haygood on KPCC's AirTalk is what drew my attention to the book and to the 20 senators who didn't vote and how that happened. Before Marshall's nomination, no Supreme Court nominee's Judiciary Committee hearing had lasted more than 4 hours. Marshall's was a full 5 days, stretched out for almost 2 weeks. Haygood on how Johnson managed to force the confirmation through the Senate despite the intent of the Southern racists to block it:

Johnson... was a master. These were senators that he had known from his years in the Senate. After Marshall made it out of the Senate Judiciary Committee [the nomination] of course headed to the full Senate. His paperwork sat in limbo for 5 weeks and that was also unheard of at the time. It made a lot of people very upset, but Lyndon Johnson started working the telephones and he convinced 20 Southern segregationists to not vote on the day of the vote for Thurgood Marshall. He twisted arms; he let them know what he would do to them. He would hurt them in their home districts, maybe by making speeches against them or not giving them some pork barrel project. He was being a master politician. And on the day of the vote, 20 Southern segregationist senators opted not to vote against Marshall.

The racists' plan for a filibuster fell apart. Only 1 Republican-- Strom Thurmond-- and 10 Dixiecrats-- Robert Byrd (WV), James Eastland (MS), Allen Ellender (LA), Sam Ervin (NC), Lister Hill (AL), Spessard Holland (FL), Fritz Hollings (SC), Russell B. Long (LA), John Sparkman (AL), and Herman Talmadge (GA) voted NO. But among the 20 senators who stayed away that day less than half were actually Southern segregationists: Harry Byrd, Jr. (D-VA), Paul Fannin (R-AZ, not technically a Southern segregationist but a Southwestern segregationist), Fred Harris (D-OK), B. Everett Jordan (D-NC), John McClellan (D-AR), Richard Russell (D-GA), George Smathers (D-FL), and John Stennis (D-MS). Others who stayed away included non-Southerns and non-racists like Democrats Joseph Montoya (NM), George McGovern (SD), Gaylord Nelson (WI), Vance Hartke (D-IN), Ed Muskie (ME), Ernest Gruening (AK) and Mike Mansfield (MT). Haygood got that wrong.

Is Chuck Grassley Still Capable Of Working For The Good Of The Citizens Of Iowa?

Julian Bond has been fighting the good fight

for a long, long time

I first met Julian Bond in 1966 when I was in college and he had been elected to-- and denied seating in-- the Georgia state legislature. I blogged about meeting him a couple years ago; fun post about something I'm very proud of. In case all you know about Julian is his service as the chairman of the NAACP from 1998 until this year, he was around long before that. He helped found the Student Nonviolent Coordinating Committee and was the first president of the Southern Poverty Law Center. And he served for 20 years in the Georgia state House and state Senate, although that all started kind of rough when the crackers who ran that show refused to seat him because they hated smart, uppity black people-- the same way Georgia racist Lynn Westmoreland hates President Obama half a century later-- and because he was opposed to the war against Vietnam. When I met him the Supreme Court had just ruled 9-0 (Bond vs Floyd) that the Georgia House of Representatives had denied him his freedom of speech and was required to seat him. He went on to organize the state legislature's Black Caucus, which wasn't very popular with the power structure there either. So what's all this got to do with Chuck Grassley? Julian did a spectacular OpEd in the Des Moines Register yesterday about Grassley's idiotic attack on the legacy of Thurgood Marshall.

Now that the Senate has formally approved Elena Kagan's nomination to the Supreme Court, one thing we know about her is that she clerked for and reveres Thurgood Marshall. That is because this became a major line of attack by Republican members of the Senate Judiciary Committee, chief among them Iowa's Sen. Charles Grassley, as they gauged her fitness as a potential justice. Many watchers were surprised by the attacks against Marshall by Grassley and his fellow Republican senators. I wasn't one of them. Appalled, yes; surprised, no.

Knowing that none of Marshall's 112 opinions from his time as a judge on the Second Circuit was overturned, Grassley nevertheless said Marshall's legal viewpoint "does not comport with the proper role of a judge or judicial method."

Kagan's work for Marshall, Grassley said, "indicates a liberal and seemingly outcome-based approach to your legal analysis."

Knowing that Marshall led the fight to dismantle the "separate but equal" doctrine in public education, Alabama Sen. Jeff Sessions, the top Republican on the committee, suggested Kagan was somehow wrong for esteeming him as her hero.

These attacks didn't surprise me because they're completely consistent with a party locked in the past, echoing the anti-civil rights message of those who opposed Justice Marshall's own confirmation in 1967.

Grassley, Sessions and their fellow Republicans roasted Solicitor General Kagan with the same attacks used against Marshall four decades earlier. Then, the late Sen. Sam Ervin of North Carolina complained about the likelihood that Marshall would be "a judicial activist," which he defined as someone "unable to exercise the self-restraint which is inherent in the judicial process when it is properly understood and applied, and who is willing to add to the Constitution things that are not in it and to subtract from the Constitution things which are in it."

When Ervin spoke of adding rights to the Constitution, there was no doubt that he was referring to the court's ruling in Brown v. Board of Education, which he had fervently opposed. Ervin went on to join with 10 other southern Senators in voting against Marshall's confirmation.

Now, in an effort to curry favor with an increasingly extreme base, personified by the likes of Sarah Palin, Republican senators flagrantly disparage a civil rights hero and the legacy of equality for which he fought. Although smears against Justice Marshall might have seemed out of place in the committee room, they fit right in among some of the GOP's most extreme supporters who wave posters portraying our president as a witch doctor and fling racial slurs. For that matter, they fit right in alongside attacks against last year's Supreme Court nominee, Sonia Sotomayor, who was herself accused of racism at the same time she was painted with ugly stereotypes about Latinos.

Grassley cannot participate in these subtle smears and at the same time claim to be representing all Iowans. Instead he, like others in the GOP, is making a calculated decision to pander to some while spitting on the values and history of others.

Blue America is very enthusiastic about the progressive Democrat running against Grassley, Roxanne Conlin. She joined us for a live blog session back in February at Crooks & Liars. When I asked her to tell me why Grassley voted against Elena Kagan's confirmation she seemed to indicate that Grassley had changed... and rather dramatically.

Senator Grassley’s vote against Elena Kagan is proof that Washington is broken, and any bipartisanship in the Senate is on the verge of extinction. Senator Grassley has chosen to vote against two talented, qualified women nominated to the Supreme Court, by a Democratic president, after decades of support for past nominations. This is an incredibly dangerous and disturbing precedent.  Voting on a Supreme Court nominee is a serious responsibility and Iowans deserve much better than childish, partisan games.