Finally, The Real Scalia

It was proper to pay respects to Antonin Scalia. That’s what civilized people do. What has been improper has been the way his views have been represented, actually misrepresented, in the press and, particularly, on television.

Finally, someone has come along and explained, without the sugar and honey, the real record and, more important, the real intent of the late justice. In a short essay (“Looking Back“) focusing on the historical context of Scalia’s hurtful tenure, Jeffrey Toobin, CNN’s senior legal analyst, began:

Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.

You should read the entire piece, especially noting that Scalia, for all the credit he got for a mammoth intellect, confessed that he “received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio.” Mix that stunning admission in with a reactionary religious upbringing and a silly and self-serving theory of constitutional interpretation, and you have a professional jurist who should always have been fairly viewed as a fairly dangerous man.

But Toobin makes the salient point relevant to this year’s election:

The Court now consists of four liberals (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and three hard-core conservatives (Roberts, Clarence Thomas, and Alito), plus Anthony Kennedy, who usually but not always sides with the conservatives. With Scalia’s death, there is a realistic possibility of a liberal majority for the first time in two generations, since the last days of the Warren Court. A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it.

Blindsided or not, Democrats, if they can come together this summer, if they can merge the youthful enthusiasm behind Bernie Sanders with the experience and electability of a seasoned Hillary Clinton, can realize Toobin’s two-generation dream of ridding the country of a conservative majority that has done much damage to the country, but damage that can still be undone if our side wins in November.

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  1. King Beauregard

     /  February 22, 2016

    If our side wins AND the Democrats are sensible enough to implement long-overdue filibuster reform.

    King Beauregard knows exactly what the best fix is. As you know, the filibuster is an informal term for the abuse of cloture, where “cloture” is agreeing to end debate on a measure. The Senate allows debate on a given matter until 60% agree that the matter has been debated to death and it’s time to close debate; a filibuster is a matter of cloture not being possible because 60 votes cannot be drummed up, because a minority refuses to admit that it’s been debated to death. All the work rests on the majority to find 60 votes.

    So the fix for the filibuster … ? If there is genuinely a significant minority of Senators who feel that debate should not be closed, MAKE THEM SIT IN THE CHAMBER AND LISTEN while the guy at the podium reads “Green Eggs and Ham”. If 40 Senators cannot be found who are willing to stay and listen to the so-called “debate”, a simple majority can invoke cloture. That way, if a minority genuinely feels that further debate is called for, they can get that debate; but if they’re just trying to obstruct for obstruction’s sake, they’ll pay the price in terms of having their own time wasted.

    Liked by 1 person

    • I like your suggestion. The problem would be in getting such a requirement passed, of course. It seems to me a much simpler answer is the first part of what you offered: make the minority conducting the filibuster actually have to speak continually, whether or not there would have to be 40 in the chamber. Because requiring the presence of the 40 would also seem to imply that a majority against the filibuster would also have to be in the chamber the entire time in order to vote. I don’t think our august politicians want any part of that.

      But, whatever the process, the place is broken and the filibuster, or rather the abuse of the filibuster, is a major culprit in the Senate. At one time, even the Senate actually worked for the most part despite having the filibuster because both sides understood that its abuse would lead to problems for each party. These days, a significant number of Republicans just don’t give a shit about the institution itself, only their ideology and retaining the power to remain in office to fight for it.



      • King Beauregard

         /  February 23, 2016

        I’ve also considered that maybe only like 35 Senators need to remain in the chamber rather than all 40. The wise reason: because there can legitimately be grounds for a Senator to leave the chamber despite sincerely wanting the debate to continue, so let’s make allowances. The petty reason: just imagine the ill will and in-fighting as obstructionist Republicans all scramble to be one of the handful that’s allowed to leave.


      • King Beauregard

         /  February 23, 2016

        “Because requiring the presence of the 40 would also seem to imply that a majority against the filibuster would also have to be in the chamber the entire time in order to vote.”

        I forgot to clarify: I’m not implying any increased obligation on the majority. If the Democrats notice that there are only 30 Republicans in the chamber, they make a flurry of phone calls to get 51 Democrats to assemble and vote for cloture. It’s the filibustering minority that would have to stay in the chamber at all times to block that option. Sucks for everyone, but filibusters should not be pleasant or easy — and unlike the present situation, my proposal would put more unpleasantness on the filibusterers than on the majority, as it should be.


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