What amount of money (reparations) does poetic justice pay out for the hardships and duress I have experienced over the past seven years?

by Kevin Gosztola (302 articles, 146 quicklinks, 81 diaries, 1082 comments [77 recommended, 0 rejected]) on Tuesday, Dec 11, 2007 at 5:50:25 PM

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There's a lot of things in here that are completely wrong, most of which it's fruitless to argue over, but just to pick the lowest of the low-hanging fruit: "strict constructionism" and "originalism" are two entirely different things, so they're inaptly conflated here (and in any event, the majority opinion in <i>Bush v. Gore</i> involved neither of them, so it's unclear why that case would discredit one or both of them); Justice Scalia didn't write in <i>Bush v. Gore</i>, so even if you had accurately characterized either the Kennedy-penned per curiam opinion or the Rehnquist concurrence, it'd be a stretch to call either "Scalia's rationale"; and Justice Scalia is not a strict constructionist - indeed, he has repeatedly said that not only is he not one, but that he thinks no one ought to be.

The late Senator Daniel Patrick Moynahan (D-NY) once observed that everyone's entitled to his own opinion, but not his own facts. The opinions in this piece are disagreeable, but the factual misrepresentations are a shade worse.

by Simon (0 articles, 0 quicklinks, 0 diaries, 3 comments) on Wednesday, Dec 12, 2007 at 8:08:41 AM

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Simple Simon says about my piece, "Poetic Justice, "There's a lot of things in here that are completely wrong, most of which it's fruitless to argue over." He then proceeds to say that I’ve conflated Strict Constructionism and Originalism. If Simon wants to point out the difference, I’d be happy to listen. But in the many articles and interviews I’ve read on the topic the two terms are used interchangeably. An interview I read with Justice Scalia, he specifically says calls himself an Orginalist, he refers to the Constitution as a "dead document," and embraces Strict Constructionism. If there’s a distinction between Originalism and Strict Constructionism I very much doubt it amounts to much of a difference. But go ahead and prove me wrong Simon. Your comments amount to "proof by assertion" But you failed to make a case.

Scalia made comments when he issued a midnight order halting the recounts . . . and also well after Bush vs. Gore when he told critics to just get over the decision. He also called critics of his Originalism or plain text approach to reading the Constitution "morons" (I think my appellation of "Justice Scalia" as an oxymoron is much wittier).

I paid careful attention to the oral arguments in Bush vs Gore, I’ve read statements by all key figures, including Scalia, and I believe my piece accurately reflects comments he and others have made. Scalia was emphatic: the Constitution confers no right to vote for president upon citizens. On this point he is right in a narrow technical sense. What I try and show is how a hyper-literalism contradicts not only itself, but also the ideals embodied in our Founding documents. Most Constitutional scholars agree – I’d wager 95% of them would agree by now – that the reasoning in Bush vs. Gore was a travesty.

by neuroscott (43 articles, 0 quicklinks, 11 diaries, 13 comments) on Wednesday, Dec 12, 2007 at 9:54:51 AM

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Scott,
"Simple Simon"? How old are you?

Moving on. I didn't make a case because I simply assumed that someone with your credentials knows the difference between interpretation and construction. I guess that proves the old saying about assuming! Originalism is a theory of interpretation: it concerns how one ascertains what a given provision of the Constitution means. Strict construction is a theory of what you do with that meaning once it's been ascertained, that is, how does it apply to this case. Except in those rare cases where a provision of (original meaning of) the Constitution speaks clearly and directly to the case, some construction is needed; what Scalia advances is to read the text neither strictly nor loosely, but reasonably to include all that it fairly contains. So you could look to Kyllo, perhaps, as a good example of an opinion that is certainly originalist but not strict constructionist.

As to what Scalia calls himself, yes, he calls himself an originalist, and I didn't contradict that. What I said was that he rejects strict constructionism, which is something entirely different: open your copy of the 1997 edition of A Matter of Interpretation to page 23 where he says explicitly what I paraphrased in my earlier comment. Or you could go to C-Span and watch the video of a speech he gave last year in which one of the first things out of his mouth is a rejection of strict construction. So I feel pretty confident in saying that you have never read an accurate quote from Scalia embracing strict construction. The closest you will find is that during his confirmation hearings, he does use that term once, but in context is clearly illustrating a political debate in the terms used in that political debate, rather than in its more correct legal meaning (as I'm sure you know from experience, one must address politicians in their own language or be misapprehended).

Careful attention to detail - and legal questions hinge on careful attention to detail - is also thrown to the wind when you write that "Scalia made comments when he issued a midnight order halting the recounts." The order you're referring to was neither "issued" by Scalia nor at midnight. Following the ruling of the Florida Supreme Court on Friday, December 8th, immediately Bush appealed to the U.S. Supreme Court asking them to grant cert and issue an emergency stay of the court below's order. The court did what it always does when such motions are received (usually last minute habeas petitions): it considered the request and issued an order reflecting its decision as to the stay and whether it would take the case (in this case, it said yes to both). Even if an individual justice had acted on the petition, rather than the entire court, it would have been Kennedy not Scalia (Scalia is Circuit Justice for the 5th Circuit, not the 11th), and your "midnight order" was issued by the court in the early afternoon of (my recollection is that it was just before three in the afternoon (EST)). The "comments" you refer to aren't secret, by the way: you can find both Justice Scalia's concurrence an Justice Stevens' dissent published at 531 U.S. 1046-8

(Nor did he call his critics "morons"; even those who insist on misrepresenting that speech don't usually so nakedly distort it. They usually content themselves with saying that he called living constitutionalists "idiots" which at least uses the right word, but still misrepresents what was said. What he said that a" target="_blank">http://www.slate.com/id/2154993">a particular argument made for why the Constitution must be a living document is idiotic. )

I want to stress that I'm confining myself to rejoining on factual points only because I see no point in arguing in this forum on the other issues; my silence shouldn't be construed (strictly or otherwise) as agreement on them.

by Simon (0 articles, 0 quicklinks, 0 diaries, 3 comments) on Wednesday, Dec 12, 2007 at 1:42:34 PM

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Voltaire once said that poetry says more than prose . . . and in fewer words. When I said Scalia issued a "midnight ruling" I meant that figuratively. But hey, some people are really anal about these kind of details, so if you want to rebut me (pun most decidedly not intended) by going on about when the majority actually released their opinion, so be it. To me that’s like judges denying a last minute death row appeal because the defendant filed an hour late. It may be legal, but it ain’t justice.

When the Court halted the recount for the last time, one of the judges explained the decision saying that though the issue was not decided yet, the plaintiff (Bush) had a high probability of succeeding with his arguments. In my recollection, those were Scalia’s words, but if it was Renquist or Kennedy I will stand corrected. In any event, whoever uttered those words was almost certainly a liar. The decision was forgone. Oral arguments before the Court weren’t about to sway the partisan hacks on the court. They were simply going to concoct whatever legal rationale they could cook up ratify Bush’s "election."

From now on I’ll stick to calling Scalia an Originalist. I don’t have much respect for him or his method of interpreting the Constitution. Justice Breyer, to my mind, who I actually bumped into one time (quite literally actually) puts forward a much more persuasive way of looking at the Constitution in his book "Active Liberty." I appreciate, however, your comments. I’ll take your word for it that Scalia used the word "idiots" rather than "morons." That takes a little bite out of my "Justice Scalia is an oxymoron" comment, but hey . . . we’ll see who’s right on Bush vs. Gore. The day after that infamous decision I wrote that the decision would engender tragedy and farce. After Katrina, Iraq, and everything else Bush has botched up, there’s little question he’s going to make Scalia look like an historical jackass.

by neuroscott (43 articles, 0 quicklinks, 11 diaries, 13 comments) on Wednesday, Dec 12, 2007 at 3:02:11 PM

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Scott, as anyone who makes a good part of their living writing clearly for an audience that will lack nonverbal cues as to intent will tell you, you can of course write figuratively, but if you give no indication that you're doing so, it's a little churlish to complain that the reader assumed you meant what you wrote rather than what you had in mind. You didn't use a common figure of speech, and I see nothing to indicate it wasn't meant literally given the conspiratorial cast of your comments re Scalia.

You're correct that Scalia filed a concurrence in the stay that said that Bush had substantial likelihood of prevailing on the merits, but you as a layman must pause to understand what that actually means. When an appellate court is asked to stay the order of the court below, the standard for granting or denying it revolves around whether the movant has a substantial likelihood of prevailing on the merits and will suffer irreparable harm if the order below is carried out. Justice Stevens dissented from the grant of the stay objecting (by no means unreasonably, although ultimately not persuasively, I think) that this standard hasn't been met and in inflammatory language designed to call into doubt the legitimacy of the court's involvement; Justice Scalia's concurrence - whatever its defects - was written explicitly to respond to the dissent's charges, to explain why (in his view) the ordinary standards for issuing a stay had been met. And Justice Stevens of all Justices (he having very properly argued that if in doubt, write) is in scant position to object to that.

Personally, I think the reasoning of the per curiam is spinach, and that you correctly assess the motives of Justices O'Connor and Kennedy. And to be quite frank, I think Rehnquist and Thomas (and perhaps Scalia too, although as you point out, he has since defended the decision, sometimes even substantively) shared that assessment. But as Prof. Amar has said of the late, great Justice Hugo Black, sometimes it's more important that the correct side win than that they win for the right reasons, and once it became apparent that O'Connor and Kennedy weren't willing to go along with deciding the case (as it should have been, in my view) on the grounds of Article II and McPherson, as Prof. Althouse has noted, imagine if the court's critics had been able to say that the court gave the Presidency to Bush citing two completely different rationales, neither of which commanded a majority of the court! In that light, I can understand why they might have joined the per curiam, even with reservations. But ultimately, the court reached the correct conclusion, and it would have been the correct conclusion even if the candidate it had helped had been Gore. For that reason, no appeal to what's happened since can change that the Rehnquist concurrence correctly construed and applied Article II, in my view, because even if the case was called Bush v. Gore, it was no more about George Bush and Al Gore than Miranda v. Arizona was about Ernesto Miranda.

by Simon (0 articles, 0 quicklinks, 0 diaries, 3 comments) on Wednesday, Dec 12, 2007 at 3:54:36 PM

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Simon, the more I read your comments the more I appreciate them. Nevertheless I couldn’t disagree more that the Court made the right decision. You quote Hugo Black to the effect that sometimes it's more important that the correct side win than that they win for the right reasons. I appreciate your concession that the majority’s reasoning was "spinach" -- I assume you are being metaphorical here? It’s not a common figure of speech, after all. I assume you meant their reasoning was noxious rather than nutritive? Ah, but I digress.

Did the correct side win? Well, you acknowledge the majority couldn’t agree on a sound rationale for halting the recounts. You also acknowledge that Kennedy and O’Connor’s motives may have boiled down to political expediency. I would argue this: Scalia’s concurrence – or the rationale in it – was flawed for this reason: the only harm Bush was going to suffer from a recount going forward at this stage was political. Florida’s Republican State legislature had clinched it for Bush by assuring that the state’s electoral votes would go to Bush no matter what the outcome of the recount. Legally, Bush had things sown up by this point, so the only harm he could suffer was political (i.e., the American public possibly sees that Bush comes up short in a Florida recount, but "wins" the presidency by finagling the law. Here’s why I think the Court did not arrive at a just outcome:

1. Thousands of Floridians were improperly disenfranchised (illegal voter purges, write in ballots that were never tabulated, and ballots that were machine unreadable but were never counted. It is true that independent news organizations inspecting the ballots found that under lax standards Gore would have won, but under stricter standards Bush still would have won. But none of this was knowable a priori.
2. Katherine Harris was hardly impartial and used her office as a wholly owned subsidiary of the Bush campaign.
3. The Court never should have intervened to halt a sovereign state’s recount . . . particularly since at that point the only harm Bush could suffer was political not legal. Scalia accepted Bush’s rationale that the candidate could suffer irreparable harm if the recounts went forward, but that harm was more political (the court of public opinion) than legal.
4. Bush is going to get Swift Boated by history. He ignored global warming, his handling of Katrina was beyond incompetent, and Iraq is without too much doubt the greatest foreign policy blunder in American history. And the United States is facing a credit crisis that could lead to a nasty recession that will in all likelihood be traced to Bush’s fiscal imprudence.
5. More people tried to vote for Gore than Bush in Florida – that seems obvious given all irregularities (Jews in Palm Beach voting for Buchanan). Sure, Bush can claim that no election is perfect, but this just reinforces my point -- following the letter of the law while ignoring its spirit is not Justice.

Poetic Justice II – Bush’s hero is a statesman by the name of Sam Houston (spelling?). Houston was derided by his fellow Texans in his day for his stance on Reconstruction, but was vindicated by history. Well, Al Gore was ridiculed for his stance on global warming, his opposition to the Iraq War, and his stance against torture. He’s in the process of being vindicated, big time. Put simply, the Court’s reasoning and motives in Bush vs Gore were pathetic . . . and the verdict of history will weigh heavily on them.

by neuroscott (43 articles, 0 quicklinks, 11 diaries, 13 comments) on Thursday, Dec 13, 2007 at 10:11:39 AM

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