Justice Scalia on 60 Minutes

Oh yes, that model of judicial integrity and rectitude. Your hero! (BTW, Obama is a constitutional expert. Kind of nice to have one of those in the White House deciding on Supreme Court appointees instead of a bozo who wanted to put the likes of Harriet Miers on the bench.)

"After weeks of critical editorials, embarrassing cartoons and late-night talk-show jokes, Supreme Court Justice Antonin Scalia issued a twenty-one-page memorandum on March 18 to explain why his January duck-hunting trip with Vice President Cheney, and his free ride to Louisiana on Cheney's plane, do not disqualify him from hearing Cheney's appeal of a case that could affect the Vice President's political future. The harm from this unpersuasive conclusion extends beyond this one case. Scalia's opinion tells thousands of federal and state judges that it can be OK to vacation with friends who have cases before them and to accept the generosity of those friends while their cases are pending. Though nothing can now undo Scalia's decision to sit in Cheney's case, it is not too soon to adopt remedies that will restore confidence to the credibility of recusal rulings.

Nine days after taking office, George W. Bush asked a study group to propose a national energy policy and named Cheney to head it. Operating in secret, the group made recommendations, which the President accepted. The Sierra Club and Judicial Watch sued Cheney and others to release the group's records so they could learn the extent of energy industry influence. Unable to get the case dismissed in lower courts, Cheney went to the Supreme Court, which took the appeal December 15. Twenty-one days later, Scalia and Cheney went on their long-planned hunting trip. Accompanied by Scalia's son and son-in-law, they flew on the Vice President's plane to Louisiana, where nine other hunters joined them. Cheney stayed two days. Scalia's group stayed longer and flew home commercially. The Sierra Club (but not Judicial Watch) asked Scalia to recuse himself, citing a thirty-year-old federal law that mandates recusal of any federal judge whose "impartiality might reasonably be questioned."

Scalia's opinion refusing to step aside dismisses the plane flight to Louisiana, explaining that it saved him no money. He writes that in order to get home, he and his relatives had to buy round-trip tickets anyway. So financially the whole episode was a wash. But money is not the issue. Anyone lucky enough to get bumped to first class because an airline has overbooked coach knows that Cheney gave the Scalia group something of value. Scalia's opinion also claims that the appeal is not really about Cheney, who is sued only in his "official capacity," but about the power of the Vice President and the meaning of complex statutes. Ignored is the fact that rejection of the appeal can hurt Cheney politically in an election year if the secret records reveal a pro-industry bias in Cheney's leadership of the study group. That may also explain why Cheney stonewalled the nonpartisan General Accounting Office when it asked him for the same information.

An opposing argument could reveal these and other flaws in Scalia's logic and might well persuade a disinterested judge to reach a contrary conclusion. Judges have been disqualified for much less. But there will be no opposing argument or disinterested judge. Scalia is both the advocate and the judge here because Supreme Court Justices get final say on when the recusal law applies to them. Scalia's eight colleagues on the Court do have the power to review his decision, just as they have reviewed similar decisions of lower court judges. But it is a power they do not use.

A proverb tells us that no person should judge his or her own cause. Yet on this issue, at least, the Justices judge themselves. The best way to change that is to require that recusal motions get assigned to someone other than the subject. Copying the practice of some lower courts, the Supreme Court can refer recusal motions to another Justice or a panel of three Justices. And to encourage recusal, if warranted, we must also make it less disruptive of the Court's business. Justices often resist recusal by citing (as Scalia did here) the need to avoid a 4-4 division on the Court. An equally divided Court means the country loses the benefit of binding precedent after much time and energy. To meet that concern, Congress should copy a system some high state courts use: In the event a Justice is disqualified, one of the thirteen chief judges of the federal courts of appeals, chosen by lot, is authorized to fill in.

Of course, the best remedy would have avoided the problem entirely. Scalia should have canceled the trip when Cheney's case appeared on his docket back in September. But judging from the dismissive, often sarcastic tone of Scalia's opinion, that option was never considered."

The Nation, April 1, 2004

I commend this blog entry to you, Michele. Perhaps Justice Scalia, in his desire for an "originalist" approach to governance, would do well to research Steve's points.

blog.beliefnet.com/stevenwaldman/

"I'd like to respectfully suggest that the important dialogue within the evangelical community would be enriched if it were to more boldly re-examine its historical roots. What it would find is that evangelicals of the founding era had very different attitudes about the separation of church and state than many of their modern counterparts. In fact, we would not have religious freedom or the separation of church and state without a key alliance between heroic evangelicals and James Madison and Thomas Jefferson."

A refreshing look at the intent of our founders with regards to religion in the public sphere. Much different than the claptrap offered up by today's advocates of church-state interworking.

"Justice Scalia's "originalist" approach to the Constitution would logically leave us with slavery, reverse women's suffrage, return the election of the Senate to the state legislatures, remove term limits on the Presidency,"

NONE of those things were decided by justices, genius. There were decided by the CITIZENRY AMENDING the document. But you would prefer to bypass the hard work of actually PERSUADING your countrymen to change the thing, and reduce the number of people you have to convince from 300 million to nine. Like chaos much?

"Originalist" doesn't mean "throw away all the amendments", Van B, it just means to interpret the document, INCLUDING amendments, in the way the writers intended.

Presuming that our generation is the most brilliant that ever lived is absurd hubris.

"Your hero!"
No, my hero is Jesus Christ :-)

"The Nation"

Yeah, there's a news source to trust.

As to Obama, yeah I bet his appointments will be no better than Ruth Bader Ginsburg.

"Presuming that the founders' generation is the most brilliant, most moral, or most well-intentioned that ever lived is equally absurd"

Duh, that's why we have the amendment process. The people can ALTER the doucument. The justices can only INTERPRET it.

"Under our founders' view of corporations they were to operate first and foremost in the public interest, under limited-length charters, and could be terminated if they caused public harm"

And so, today, if a company harms the people, they can be brought to trial under civil law and have a judgement made against them.

"The expansion of civil rights is viewed as contrary to the intention of the founders"

Gee, forget The Civil Rights Act much?

"rape victim seeking treatment"

"Treatment", AKA abortion or killing the baby. Convict the rapist and throw him in jail. Support the vicitimized woman through the pregnancy. Make the child a ward of the state rather than killing her because her father was a criminal.

"a prisoner facing execution for a crime he did not commit"??????

When in blue blazes has any court EVER sentenced somebody to die who they KNEW was innocent?

Making up absurd facts does not help your argument.

Lemme get this straight yelladawg. There is some evil "power" in our country today that Jesus would automatically denounce, and that we need to speak "truth" to. And furthermore, this truth-speaking requires some degree of courage because this "power" might hurt us for speaking up. I'm assuming you're vaguely alluding to the Current Occupant and Wall Street. Please tell me when was the last time jack-booted stormtroopers representing these forces kicked in your door and arrested you?

You, sir, are the center of a drama manufactured by your own imagination.

ZZ: "When in blue blazes has any court EVER sentenced somebody to die who they KNEW was innocent?"

Have you ever heard of the name Reuben Cantu? Assuming you can read, go ahead and check out what information you can find about his case. Read about the prosecutor who now, after Cantu's execution, admits he never should have pressed for the death penalty. Read about the judge who, now that Cantu is dead, admits that there were problems with both the evidence and the procedures in the case.

Or perhaps you could read about Cory Maye, a young man who defended himself against someone breaking into his home. Read about the public defender in that community who was threatened with his job if he defended the young man. Read about the mayor and police chief of the community who refuse to provide any information on the "informant" who was behind the illegally obtained and executed search warrant.

Naive and young, you blithely insist that the justice system never knowingly executes an innocent man. There is at least one judge who disagrees with you.

www.commondreams.org/cgi-bin/print.cgi?file=/headlines03/0812-01.htm

Of course, just like Justice Scalia, you really don't care about it. After all, they must be guilty of something, otherwise they wouldn't have attracted the attention of the police, would they?

"Jesus is your hero? Jesus, the defender of the marginalized, the outcasts, the poor, the voiceless, the sick, the rule-breakers, the heartbroken, the adulterers, the clueless, the profligate in the name of love? Jesus, who overturned the tables of the moneychangers in the Temple (cha-ching, cha-ching sing the cash registers of the charlatan TV evangelists, stealing from the old ladies)? Jesus, who called the pious religious people of his day, so proud they "were not like those other people" white-washed tombs full of dead men's bones? Jesus, who spoke TRUTH to power instead of toadying to it and parroting its propaganda?

THAT Jesus?

Wow, could've fooled me. "

Interesting your choice of attributes and the insult, are you a Christian? Because if you are you might want to think about this verse:

ESV Matthew 7:1 ¶ "Judge not, that you be not judged.

And this one:

1 John 4:20 If anyone says, "I love God," and hates his brother, he is a liar; for he who does not love his brother whom he has seen cannot love God whom he has not seen.

And if you aren't a Christian, then let me introduce you to my hero. The Jesus that I admire was obedient to the point of death on the cross. Who loved sinners (including the adulterers) and invited them to repent. Who drove the money changers from the temple because they polluted the house of God and he was zealous for his Father's holiness. It was supposed to be a "house of prayer" and they made it a "den of robbers."

His love for the Father and his complete obedience is a goal to strive for but one that is far out of reach.

Michele, I fail to see many signs of your obedience to the Lord in the items that you choose to post on this blog, and in the spirit of your comments. Rather, I see a carping, narrow-minded focus on the perceived shortcomings of one political party and its representatives and a desire to score points by belittling those who disagree with you. You distort the words of others, gleefully pounce on anything you can take out of context and use against your opponents, and show no signs of compassion for the less fortunate who are suffering hardship, grievous bodily harm and even death because of the abuse of power of those you put into office. Instead, you persistently defend the morally indefensible. I'm sure your belief in Jesus is sincere, but frankly, I can't see how it relates to anything you're doing on this blog.

Regarding Cory Maye and Reuben Cantu:

MAY WAS NOT SENTENCED TO DEATH. There's no indicaton that anybody ever thought the evidence against him rose anywhere near the level required for capital punishment. Citing him is a dishonest ploy.

Cantu is hardly a sympathetic figure. I can't find squat about him except in a bunch of leftie blogs and one piece in the Houston chronicle. He was in a gang, did drugs, stole cars and shot several people. he only difference between what he did an murder was that he was an imperfect shot.

I DO admit that I have conflicted opinions about the death penalty. Not because I think it's wrong at its basis. Both the constitution and the Bible specifically allow for it. And it's not because I think the system doesn't work. I do question whether our goverment, the way it is constituted now (representative republic), can claim to have the authority to condemn individual people to death. But it's in the constitution and will require an amendment to change it.

ZZ: "But it's in the constitution and will require an amendment to change it."

Actually, all that it would take is the individual states recinding the death penalty to stop the majority of executions in this country. Most of the capital convictions are based on state, not federal, law. If a legislature, governor, or state judiciary were to take action these executions would stop. Look at what happened in Illinois when Governor Ryan imposed a moratorium on executions because of the growing number of innocent people discovered to be on death row.

If I recall correctly the US Supreme Court suspended all executions because, in their opinion, the penalty violated the "cruel and unusual" clause of the Bill of Rights. A later court reinstated the penalty, but for a number of years there were no executions in this country.

The problem I see with the death penalty is that there is no recourse if a mistake is made. Reuben Cantu may not have been an angel, but even the prosecutor and judge in the case admit that, in this instance, a mistake has been made. Unfortunately, there is no way to bring Cantu back and either commute the sentence to life or release him. Yes, he was no angel, and probably deserved a long prison term. But death? Even the prosecutor doesn't believe he deserved it.

www.reason.com/blog/show/111778.html
www.chron.com/disp/story.mpl/chronicle/3472872.html

From the Chronicle piece:

"Sam Millsap Jr., the former Bexar County district attorney who made the decision to charge Cantu with capital murder, says he never should have sought the death penalty in a case based on the testimony of an eyewitness who identified Cantu only after police officers showed him Cantu's photo three separate times."

If the prosecutor believes an error was made, I think that speaks volumes.

As for Cory Maye, I am not sure where you got your information, but he was most certainly sentenced to death. Did you really do any searching on this?

www.reason.com/news/show/36869.html
(Reason Magazine is staunchly libertarian in its editorial position)

www.foxnews.com/story/0,2933,184992,00.html
(FOX News is hardly a lefty blog)

It will be interesting to see where this appeal goes.

Okay, I missed the sentencing info. I seriously doubt his convction will be upheld. System looks like it's working in this case.

"Michele, I fail to see many signs of your obedience to the Lord in the items that you choose to post on this blog, and in the spirit of your comments. Rather, I see a carping, narrow-minded focus on the perceived shortcomings of one political party and its representatives and a desire to score points by belittling those who disagree with you. You distort the words of others, gleefully pounce on anything you can take out of context and use against your opponents, and show no signs of compassion for the less fortunate who are suffering hardship, grievous bodily harm and even death because of the abuse of power of those you put into office. Instead, you persistently defend the morally indefensible. I'm sure your belief in Jesus is sincere, but frankly, I can't see how it relates to anything you're doing on this blog."

This is why I suggested that you might want to contemplate Matthew 7. You obviously only "know" me through this blog but you really don't know me or what I'm doing in my real life except for what I share here (and I don't share that much). You know nothing and yet presume to tell me that I'm not being obedient to God. I will admit that my obedience leaves a lot to be desired but then any question who understands the holiness of God could say the same thing.

As to how I respond to commenters, I usually respond in kind. So if you think I've been harsh, you might want to go back and see how you began the conversation.

As to my posts. Here's an example of Jesus responding to the hypocrites and authorities:

Matthew 13:25 ¶ "Woe to you, scribes and Pharisees, hypocrites! For you clean the outside of the cup and the plate, but inside they are full of greed and self-indulgence. 26 You blind Pharisee! First clean the inside of the cup and the plate, that the outside also may be clean. 27 ¶ "Woe to you, scribes and Pharisees, hypocrites! For you are like whitewashed tombs, which outwardly appear beautiful, but within are full of dead people's bones and all uncleanness. 28 So you also outwardly appear righteous to others, but within you are full of hypocrisy and lawlessness.

If you don't think that as Christians we can be sarcastic or angry, I suggest you read the Psalms. God shows us in the Psalms how we can express our frustrations and the anger we feel toward our enemies and toward God.

Your point of view colors how you interpret my posts. I'm actually fairer than you realize because I will not post if I deem the charge that is being made as unfair or trivial. I have my own standard, it is not yours and you'll have to learn to be less judgmental toward those who don't share your standard or you will continue to be as judgmental as you are in this comment.

RJohnson:

"No, if the system were working the cop would never have gone into that apartment."

I actually meant the system of prosecution and trial. The police procedures of that particular municipality may need fixing, I don't know, but it's hard to demand that anybody, police included, display superhuman administrative ability or judgement. That's why we have a presumption of innocence and trials in the first place.

I'm all for bearing with each other, Moonshadow. Thanks for the gentle reminder.

I never said or even implied that Christians don't get sarcastic or angry; to do so would be to fly in the face of the evidence, for starters. Nor do I "judge" you or "hate" you, Michele; I obviously don't know you and you don't know me. But I do judge and weigh your words, the causes you espouse, the people you support and fail to support. And anyone who reads the Bible with any measure of openness or objectivity will find hundreds of verses about the poor, and about the penalties to be visited upon those who ignore their cries for help, join in oppressing them, or crush them beneath their heels. Serving and defending the poor is not just one "strand" among many in Biblical teaching; it's not something we are commanded to do once in awhile, or when we feel like it. It's not a matter of pulling an old can of lima beans out of the pantry when it's time to donate food (thank you, Marge Simpson). As one author on a website I visited noted, "How many of us have sold so much as a lawn mower in order to give to the poor, much less all our possessions?"

Conservative churches have largely ignored issues of social justice for decades. But what is worse, they have aligned themselves with the very entities that seek to destroy even what little there is in the way of a safety net for the poor and the working poor. Corporate CEO's make salaries that are 400 times greater than their lowest paid workers; people who have worked all their lives are laid off just before they are eligible to collect their pensions, or their pension funds are looted by white collar thieves who get off scot-free. The children of the working class risk and sacrifice their limbs and their lives fighting our wars while the children of the better off blithely go to college. And then, when those who are lucky enough to survive the war come home, we tell them there's no money for a G.I. bill, sorry. (Thanks to McCain and his compatriots.) Do you think God takes no note of such injustice? It is a stench in his nostrils.

ZZ, it's admirable that you take personal responsibility for your fellow man. But there's a role for charity, and there's a role for government to play in righting social injustice. When the injustice is systemic, when it's built into the laws and the tax codes and the budget priorities, Christians must speak up and demand change. It's not enough to volunteer in a soup kitchen once a week if you totally ignore the causes that make soup kitchens necessary in the first place, and help to perpetuate them.

And as for accusing me of paranoia, I guess you must've missed that little news item awhile back about the suspension of habeas corpus.

"I only know for myself, I couldn't do it and avoid hell:"

I don't have to worry about hell:
Romans 8:1 ¶ There is therefore now no condemnation for those who are in Christ Jesus.

Garry Wills has a different perspective, you know, on how we can't do what Jesus did: "The thing that we have to realize is that Christ, whoever or whatever he was, was certainly not a Christian."

OK, how about Peter:
2 Peter 2:22 What the true proverb says has happened to them: "The dog returns to its own vomit, and the sow, after washing herself, returns to wallow in the mire."

Or Paul:
Gal 5:11 But if I, brothers, still preach circumcision, why am I still being persecuted? In that case the offense of the cross has been removed. 12 I wish those who unsettle you would emasculate themselves!

Or the Psalms, they are there for our benefit.

I think they all demonstrate that you can express yourself in sarcasm and anger and God still love you :-) BTW, if you really want to see sarcasm, you should take a class at Westminster, those professors are rough!

I WAS trying to bear with you, Michele. But once again you resort to distortion and accusation in your attempt to defend the morally indefensible.

My point is that the government has not only not solved the problem, it hasn't even made a serious effort because the only constituency that could possibly exert any pressure on the government to get its act together--the church--lacks the spiritual courage and the political will to do so. It has been co-opted.

Why do you assume I'm for fostering dependency in the poor? That I favor high rises? That I don't do anything personally and expect the government to do it all? That I believe "throwing money" at the schools (and by the way, I don't think that approach has actually been tried) will fix everything? That I approve of the foster care system? All of these are completely baseless accusations, the kind you seem to revel in.

I repeat: It's not enough to volunteer in a soup kitchen once a week (or twice a week, or every day) if you totally ignore the causes that make soup kitchens necessary in the first place, and help to perpetuate them by electing politicians who care nothing for the poor. (Why should they, after all? The poor don't make campaign contributions; now that the Republicans have pushed through restrictive voter ID laws designed to disenfranchise them, the pols will have even less of a reason to give a damn.)

And speaking of billions wasted on bureaucracy, a single-payer health care system would pay for itself by eliminating the expenses of the bureaucracy created and maintained by the middlemen, the insurance companies. But no--Republicans scream "socialized medicine" and scare people to death. So we all continue to suffer the consequences, the poor most of all, and the insurance company CEO's grow fat on the agonies of the sick and their lobbyists put a hammerlock on our democracy.

Or the Psalms, they are there for our benefit.

I know, and I do pray aloud from them and try to "own" the sentiments expressed in them. Even counting myself among the "chosen people," albeit perhaps "second string," I know I enjoy that same relationship that they enjoy.

I don't have to worry about hell:

I appreciate that. My spiritual life is different. I'll ask your patience as I direct you again to Lewis's chapter on the virtues, especially the final three points.

And, yes, I know how vehemently the apostles repudiated the enemies of the gospel, but we're in the family here??

Scalia is a maverick? No, he is a criminal. He does not believe in a government of laws, and stated so openly for all to see . In Bush v. Gore he stated that Bush would be harmed if all the votes were counted. The only decision in Supreme Court history that they stated didn't set a precident. This violates his oath upon taking any judgeship, let alone the Supreme Court, that he will judge impartially according to the law. And I know a Conservative right wing judge who agrees.

"My point is that the government has not only not solved the problem, it hasn't even made a serious effort because the only constituency that could possibly exert any pressure on the government to get its act together--the church--lacks the spiritual courage and the political will to do so. It has been co-opted."

Hasn't made a serious effort? What do you think the government has been trying to do for the last 40 years? You just made my point, if the government can't solve the problem in 40 years throwing billions of dollars at it, what makes you think throwing billions more will help? The federal government isn't equipped to handle this problem and should just give block grants to the states to solve it. We would at least be getting rid of a level of bureaucracy and save ourselves money.

""throwing money" at the schools (and by the way, I don't think that approach has actually been tried) will fix everything?"
How much money is spent per pupil in NY city? How about LA? How much was spent five years ago? 10?

"That I favor high rises?"

You want the government to solve the problem, there's one attempt at a solution for ya! And now they've started tearing them down and putting up single family units (which I applaud since it's safer for the families). Millions of dollars wasted.

"if you totally ignore the causes that make soup kitchens necessary in the first place, and help to perpetuate them by electing politicians who care nothing for the poor. (Why should they, after all? The poor don't make campaign contributions;"

We've spent billions of dollars on this problem already and if you think the democrats care about the poor then you are pretty naive. They will just continue to support the status quo because they haven't a clue how to solve the problem. And their solutions so far have made it worse. Why would I want to continue electing the people who have brought us the welfare state, social engineering and poor education without the option of choice. They're complete failures.

You see I care very much for the poor and don't want to see them in the hands of these failures. If the left really cared about the poor they would send the millions that they've donated to their candidates to originations that actually have had success helping the poor.

It's really easy to come here saying "I care more about the poor because I'm a democrat" but that proves nothing about your commitment to the poor, all that shows is that you don't really care enough about them to actually help them. Why consign them to more failed programs?

40 years of programs have created a dependency class.....
Funny how nobody says that about corporate welfare, which is far more costly than the programs to combat poverty.

These programs haven't solved any problems? The goal was to reduce it by as much as possible. By that logic, we might as well disband the police and fire departments. After all, we still have crime and fires.
So why bother? Because you keep working at it..These are diffucult problems.

The poor are always with us.

Hmm.. I remember reading that somewhere. Can't quite remember where.

I guess if something doesn't eliminate poverty that it is a bad program. Heck with alleviating the effects of poverty. After all, there's still poor people, therefore it is a failure.

Who cares that, despite this image of the permanent underclass, the average length of receiving benefits, even before 1996, was 2 years. That the average recipient wasn't someone in a ghetto, it was a recently divorced or widowed woman with children who was trying to learn to deal with the lowered income, find different housing with lower rent, and raise their own income with either finding their first, or improving their employment situation.

To show how things have improved since Welfare Reform, they showed a study that demonstrated that the average recipient stayed on the rolls 23 months, and that after, it was reduced to 13 months.

Note, though, that in either case, the AVERAGE was a matter of months. Hardly the lifetime Welfare Queens that seems to be the only thing people hear about.

As circumstances and the economy change, people drift onto and off the welfare rolls, using it as the temporary help that most agree it should be.

The poor ARE always with us, but they aren't always the same poor.

"Well, they were. They won't be for much longer. With the cutbacks and higher expenses, we'll be closing, and we're the only family shelter in town"

Maybe if the states were getting block grants like I suggest, they could task organizations like you to deal with the poor since they are unable to do so.

"We've spent billions of dollars on this problem already and if you think the democrats care about the poor then you are pretty naive."

that's your naive, biased, right-wing opinion, not based upon any factual data."

Are you honestly saying that we haven't spent billions on welfare over the last 40 years? Federally? Do you know how much California alone has spent on welfare this year? How about the federal government?

"problems would be solved by the market"

What market? Do you think there is a way to make money from serving the poor? Why would the left pay to help the homeless when they send millions to put Obama or Clinton in the WH to take care of the problem for them.

"the "welfare state" is a fairytale made-up place that conservatives believe the poor people live. "social engineering" is what they call affirmative action."

No, I said that I meant. Social engineering -- efforts to fix a sociological problem in a society. Welfare state -- go check out how many services a state like CA offers the poor and tell me it isn't a welfare state. Also what about the last federal budget, how much money was spent on welfare, do you even know? Where is that money going if no one is getting welfare?

Socialism for the rich is just business as usual. And that is a lot more than 1 % of the budget.
As above , welfare for the rich is 87 billion per year, according to the CATO institute. And they have the lowest figures for that- other estimates are much higher.

But I have never heard the right griping about those. Lobster salad socialism is ok.