Saturday, February 13, 2016

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)

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:


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.


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?

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.


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?


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


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At 12:18 AM, Blogger tamtam said...

I'll bet the Republicans are planning a coup, and Tony Scalia's sudden passing is the spark that sets it off. They'll block and fuck around with any nominee Obama brings up until after the elections. And if they don't win the election, no matter how many books they cooked, well...then they'll just send in the military to overthrow whoever is the president like any Third World tinpot dictatorship they've helped create in the last 50 years. They won't have to worry about replacing a Supreme Court justice then.

The Republican Party has pulled coups before. See: Dubya vs. Gore, 2000

At 1:20 AM, Anonymous Anonymous said...

Thanks for the appropriate and well-deserved anti-eulogy for Hon. Justice Fetid Skidmark on the History of the SCOTUS.

I would submit, as is my obsessive won't, that Justice Skidmark did more than simply "ignore the plain language of the (2nd) amendment, which states clearly that it relates to maintaining militias." (Last time I harped on this I forgot some of those other words.)

He also completely destroyed the following words of the body of the constitution regarding "the Militia," to which those of the 2nd Amendment refer, and which define the purpose and method of regulation of said Militia:

"Article I
Section. 8.
The Congress shall have Power .......
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; ...

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; ...

Article II

Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States ... "

(Note that the purpose of the Militia was to guard against insurrections NOT to facilitate them as the deranged reich wing would have us believe.)

This clear example of judicial activism/logical contortion is in the Heller decision:

At 7:26 AM, Blogger Unknown said...

Republicans hate activist judges unless the judges are advocating for them. Nino was obviously sort of insane. The guy's poor wife birthed NINE of his hell spawn before menopause mercifully ended her torture. His views on procreation, birth control, LGBTQ rights, race, environment,and economics were informed by his worship of Catholic magic and sky daddy.

At 11:15 AM, Blogger News Nag said...

One fewer superstitious 'sky daddy' (thanks for the description, Natalie) justices is welcome. Of course with most sky daddy adherents, the devotion is solely for the purpose of being overly strict and parsimonious with other people's lives and rights. And as tamtam says above, yes 2000 was a coup year.

At 11:16 AM, Anonymous Anonymous said...

I was eagerly awaiting your take on the death of "short-timer" Scalia. As usual, you nailed it in a well thought out description of a would-be despot. Thanks!

At 3:29 PM, Anonymous said...

sad commentary on justice and the american system.

as sad as it is, we are not much better in Canada - we have the false flag of the Governor General and a Queen who is irresponsible to the task of social governance


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