Wednesday, May 7, 2008

Scalia's Thumb on the Scales

The best fake news program ever, The Daily Show with Jon Stewart, alerted me to Lesley Stahl’s interview of Supreme Court Justice Antonin Scalia on 60 Minutes. I watched the first half of the interview and have not the stomach to watch the second half.

What I saw and heard has haunted me; my dreams have been pervaded with rebuttals, retorts and reproaches. I have been stricken with nausea brought on not only by Ms Stahl’s fawning, gushing school-girl act but the pompous arrogance of Justice Scalia and his school-boy debate team games of rhetoric.

I’ll leave the legalistic punditry to others to parse but I will posit that El Nino’s description of himself as a ‘Constitutional originalist’- someone who insists the US Constitution be viewed through the same myopic, racist, theocratic lens as was used by most of the Founding Fathers and the framers of the constitution - is just another word-game (of which Scales is quite fond as was shown in the interview).

Now, I’m all for the Founding Fathers. Please consider, however, that with few exceptions, they were all wealthy, educated, white male Protestants of western European decent. Not exactly what anyone would call a democratic cross-section of society, then or now. They were visionary, progressive, brave men but they were also men of their own times. Times have changed. Not many politicians and statesmen in modern America could own slaves, for instance.

Scalia is a firmly out-spoken opponent of what is called the ‘Living Constitution’ whereby the modern connotations of terms such as liberty, freedom, and cruel and unusual punishment are the accepted norm when reading the document. The term ‘originalist’ serves to obfuscate the fact that Scalia is a ‘literalist’ and a fundamentalist who claims to have the only correct interpretation of the fundamentals much like the Bible-belt preachers that insist the world was created in 7 days, 5 to 10,000 years ago.

It must be remembered that ‘Scales’ was appointed by Ronnie the Communicator at the height of the Iran-Contra era, a time when Nicaragua was the devil at our door, when selling drugs to buy arms for a private army was a ‘cool idea’, when Grenada and Panama loomed threateningly and Ronnie, Ollie, Bush the Elder, Schultz and Henry the K were hell-bent on destroying the ‘Evil Empire’ along with our economy. This context must be kept in mind so that the absurdities which ‘Scales’ so charmingly espouses might be clearly seen as balderdash in high resolution. That he is a fundamentalist and a reductionist should place him under the same heading as most other fundamentalists – a nutter to be carefully monitored. (To be quite honest, I have had my fill of fundamentalists. I can only hope that there is a growing number of people who feel the same.) It is a shame and a travesty that he is a senior member if the Supreme Court.

He offers arguments that are both specious and facetious while posturing as a playful wise-guy dismissive of his inferiors. He claims his own position of authority as support for his arguments; i.e. ‘I am Supreme Court Justice Antonin Scalia, therefore, ipso facto, I am right.’ I can’t help but ask how this guy made it onto the Supreme Court or even on a high school debate team. My friends would pick him apart if he tried to pull any of his malarkey without the smoke and mirrors of his lofty position. Too bad Ms Stahl was so ga-ga over meeting him that she left her journalistic cred and her ‘Baloney Detection Kit’ in her other suit.

Here’s in an extended excerpt from Ms Stahl’s interview with Justice Scalia. El Nino’s own words during the interview reveal the flaws in his arguments regarding the 2000 election scandal and the current controversy regarding torture. The interview opens with an appearance by Justice Scalia at the Oxford University Union and a very cleverly worded question from an Oxford student regarding the 2000 US presidential election.

“Of all the cases that have come before him on the court, Bush v. Gore may have been the most controversial. It has been reported that he played a pivotal role in urging the other justices to end the Florida recount, thereby handing the 2000 election to George Bush. The subject came up at the Oxford Union.”

"Supposing yourself as a Supreme Court justice were granted the power to appoint the next president of the United States, who would you pick and why? And would he or she be better than your last choice?" a student asked Scalia.

"You wanna talk about Bush versus Gore. I perceive that," he replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"

“So there!”

‘I’m right and that’s all that needs to be said.’ A very fitting rebuttal for a Supreme Court Justice to make at one of the world’s most prestigious institutions of learning, don’t you think? Then, Ms Stahl’s interview begins.

"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.

"I say nonsense," Scalia says.

Was it political?

"Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.

Moreover, he says it was not the court that made this a judicial question.

"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.

Here, El Nino jokes to cover the simple, obvious truth while blaming the victim. What else is one expected to do when confronted with a matter of legality except to take the matter to court? It is as if Scalia would deride Al Gore’s right and the rights of the American people to a court hearing to insure that is justice done. (In this instance, injustice to our republic was done, IMHO.)

Scalia’s position is preposterous. To determine legal matters, to render judicial decisions, such matters are precisely what our courts are for. The courts were the only proper place for Gore to go to rectify such an important legal matter as the sanctity of votes and an honest, accurate count thereof. Does ‘Scales’ think Al should have just slunk away with so much riding on an accurate count? Whatever his answer, he places the onus of the infamous decision in Gore’s lap.

Now back to the interview:

"It ended up being a political decision" Stahl points out.

"Well you say that. I don't say that," Scalia replies.

"You don’t think it handed the election to George Bush?" Stahl asks.

"Well, how does that make it a political decision?" Scalia asks.


"It decided the election," Stahl says.

"If that’s all you mean by it, yes," Scalia says.

"That’s all I mean by it," Stahl says.

"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.

‘No matter what?’

Does ‘Scales’ actually believe that there was no other outcome to consider in the 2000 election? Bush won and that was that; foregone conclusion at that point in the game? No bit of lingering uncertainty regarding the thousands of uncounted, mis-counted and ultimately discounted votes by the citizens of Florida who were in effect, dis-enfranchised in a presidential election?

How is it that this man made it through law school? Or even through a basic course in logic?

The interview now enters El Nino’s views on the matter of torture.

"I don't like torture," Scalia says. "Although defining it is going to be a nice trick.”

Well, Nino, one attempt was made in 1948, by the General Assembly of the United Nations following the horrific abuses of World War II in the Universal Declaration of Human Rights:

Article 5 states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This ban on torture and other ill-treatment has subsequently been incorporated into the extensive network of international and regional human rights treaties. It is contained in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), ratified by 153 countries, including the United States in 1992, and in the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), ratified by 136 countries, including the United States in 1994. It is also codified in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, and the American Convention on Human Rights.

(For information regarding laws defining and prohibiting torture please visit the Human Rights Watch web site. )

Evidently, these declarations, conventions, covenants, and codes are deficient in the view of Scales Scalia. Perhaps he prefers the views of Alberto Gonzalez and John Yoo as expressed in the infamous ‘Torture Memo’.

“But who's in favor of it?” Scalia continues. “Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

This beggars the imagination. Scalia tries to equate ‘punishment’ to ‘torture’ in the attempt, as a literalist, to undermine the implied Constitutional ban on torture. A quick look at a decent dictionary will reveal that punishment has the additional meaning of ‘rough handling or mistreatment’ as well as penalty for infraction. Torture is used as punishment and punishment, generally speaking, is a form of torture. (Punishment is never intended to be pleasant, after all.) Once again, Scalia’s attempted resort to tricks of rhetoric is feeble, hollow and even devoid of the lexical grounding necessary for such a cheap trick to pass logically.

Fortunately for the charming El Nino, the formulation of logical discourse is not Ms Stahl’s forte. She continues moony-eyed.

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

"Because he thinks you are a terrorist and he's going to beat the ‘you-know-what’ out of you…," Stahl replies.

"Anyway, that’s my view," Scalia says. "And it happens to be correct."

What view? He only obstructed discourse in this segment of the interview. His bludgeon of choice is to laughingly pooh-pooh the half-hearted challenges offered by Ms Stahl. He gave no credible argument on either topic, the 2000 election debacle or the torture scandal highlighted by Abu Ghraib. Since he was stammering and painting himself into a corner on this one, he sought his last refuge and fell back on his status of authority.

What a major Dick!

If Scales is “one of the most prominent legal thinkers of his generation” , it’s easy to see why the Constitution has been gutted and why the US is in such deep doo-doo.

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