Monday, August 18, 2008

It's also about the Supreme Court - Stupid!


Senator Barack Obama said this weekend that Associate Justice Antonin Scalia, of the U.S. Supreme Court, was a brilliant thinker but he didn't share his views.

On the other hand, Senator John McCain thinks Justice Scalia is a model justice.

Whomever is elected President will likely have to choose three new Justices to the Supreme Court.

I give this toss up to Obama - the former law professor - as he's got this all right, and McCain doesn't even come close.

I do have a nagging quibble, however, when the Senator says that Justice Scalia is "brilliant."

I do truly think the Senator is a tad too kind.

You may have noticed that Scalia has broken his media silence this year to talk on camera in order to hawk a rule book (115 rules to be precise) that he’s written with Bryan Garner, his sycophantic co-author whose claim to fame is as the author of “Modern American Usage” and the “Elements of Legal Style”.

The title of the book is “Making your case – the Art of Persuading Judges.”

At the very outset, Justice Scalia advises us, of a judge’s “human proclivity to be more receptive to argument from a person who is both trusted and liked” (p. xxii).

You may recall the accusation that Justice Scalia was more “receptive” to Vice President Cheney’s argument before the Supreme Court, when our Vice President refused to disclose information about his energy task force.
Justice Scalia appeared to “trust” and to “like” Cheney. Justice Scalia even went duck hunting with the Vice President while the Sierra Club’s appeal demanding disclosure was pending before the Supreme Court. Justice Scalia then wrote a 21-page “not-to-worry” broadside saying that many Supreme Court Justices get their jobs “precisely because they were friends of the incumbent president or senior officials.”

I didn't think that was brilliant.

Justice Scalia also said in his book that a legal advocate must “master the relative weight of precedents” (Rule 26)(p. 52). But how do you master a precident that is disregarded?

When the Supreme Court intervened, in its 5-4 decision, in 2000, making Governor George Bush the President over VP Al Gore, by stopping the recount in the Florida primary, the decision was unprecedented.

The dissenters called it an intrusion into what was and should have been resolved by state law; Associate Justice Breyer quoted Brandeis who wrote: “The most important thing we do is not doing.”

When correspondent Lesley Stahl recently asked Justice Scalia on CBS’s Sixty Minutes if the decision in Bush v. Gore, ending the Florida recount favoring Bush, wasn’t more about politics than judicial philosophy, Justice Scalia passed up the opportunity to teach us, just as he did in his rule book, and said instead “get over it. It’s so old by now.”

(If court opinions did truly invite indifference or irrelevance by their age, then why is it that Justice Scalia can’t “get over” a much older Supreme Court decision, Roe v. Wade, from 1973, recognizing a woman’s right of privacy?)

How can anyone argue to a court with a political agenda that disregards precedent?

Justice Scalia insists on deference, a kingly prerogative, when arguing before the court.

He says advocates that address the Court should appear as a “junior” colleague, and as one “explaining the case to a highly intelligent senior partner” (rule 18, p. 33).

I beg to differ. No advocate should be considered an inferior before any court in a democracy. No advocate should need to consider himself (or herself) in any other way than respectful and competent.

I believe most courts and justices agree and prefer a competent advocate to inform their discretion, and not some lackey who is too humbled before the court to be zealous for his client.

Justice Scalia doesn’t blunt his own zealous advocacy as a Justice.

He has written opinions that referred to the other Justices’ opinions variously as “sheer applesauce”, “absurd”, “implausible speculation”, and “self-righteous.”

Should an advocate before the Court in a democracy be more constrained than a Justice?

No doubt you have your own views about Justice Scalia and the other Justices.

When Senator Obama listed the Justices that he thought were suited to serve, and explained why he did not favor others including Justice Scalia, he did give us all hope for a much-need change on the Supreme Court.

This is just one more example where Senator McCain would assure us that we were going to get more of the same.

When President Clinton ran, he was fond of repeating his campaign manager's admonition, "it's the economy, stupid."

Well, this year it's again the economy, and the war, but it's also about the Supreme Court.

J. Flannery

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