A supremely bad idea

Justice Joseph Rucker Lamar (1857-1916), via New Georgia Encyclopedia.

In the bizarre storm breaking out last night over whether it's proper for a president in the last year of his term to nominate a Supreme Court justice, with Chuckles Grassley claiming such a thing hadn't happened in the last 80 years even though he himself had voted for one of them (Anthony Kennedy, in 1988; the others in the last 80 years are Brennan, 1956, and Powell and Rehnquist, from the Nixon year 1972), a point of some significance got lost.

In the normal case a new justice is named when an old justice retires, and is available to serve, however crankily, until the new justice is confirmed with the advice and consent of the Senate. The really problematic situation, where there are only eight justices and the strong possibility of failing to reach a majority in an excessive number of cases, only happens in the much rarer event of a justice's death or resignation with immediate effect.

So Dr. Google and I would like to report: Scalia is the first justice to have died during an election year since 1916, when Joseph Rucker Lamar of Georgia died in the middle of term on January 2, and on January 29 Woodrow Wilson "surprised the nation" by nominating Louis Brandeis to succeed him. Brandeis took rather a long time to confirm, until June 1, for some reason or other—

RIP Antonino Scalia

Justice Scalia dedicated his life to upholding the law as the Founding Fathers intended. https://t.co/6Iab3JfAAv pic.twitter.com/801YpwZxB8

— Blake Farenthold (@farenthold) February 13, 2016

Have to admit when I saw "quail hunting" my first thought was OMG Cheney shot him. Is that bad taste? https://t.co/gjdtlL96cb

— Yastreblyansky (@Yastreblyansky) February 13, 2016

Fisher Disher

Image from Slate's Scalia Insult Generator.

I've been all over the place on Justice Scalia's remarks at the oral arguments for Fisher vs. University of Texas–Austin, the complaint against the UT quasi–affirmative action admissions policy of letting in anybody in the top 10% of their high school classes, which discriminate against young Abigail Fisher because, she thought, she wasn't in the top 10% in her high school, but probably if she was in one of those MINORITY schools she would have been since they're all so dumb and she's smart enough to have made it through LSU*, so what's going on, where Scalia explained:

there were people who would contend that "it does not benefit African-Americans to -- to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well." He argued that "most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're -- that they're being pushed ahead in -- in classes that are too -- too fast for them," Scalia said.

Pity the poor African Americans led by an uncaring society to believe they ought to attend a school with smart people in it! And occupying a seat that might have been occupied by Abigail Fisher, whose whole family went to Austin, proving that she's the right sort, even though her grades were maybe not that great.

*In the 2015 Shanghai rankings UT-Austin is at 27th in the US, and LSU at the tie for 79th to 102nd. Just saying.

But the thing that really got to me was that Scalia had a proper pseudo-scientific source for his retrograde opinions, as I found myself noting at the Frogpond:

Hey Rubio, Scalia sez you're an idiot

The author of the Undead Constitution, Zombie James Madison.

Marco, you fuckup:

Marco Rubio: .... I think one of the biggest things the next President is going to do is appoint justices to the Supreme Court -- justices who understand that the Constitution is a living and breathing document. It is a document of limitation and it’s supposed to be interpreted and applied based on its original intent. And there is no way that you can read that Constitution and deduce from it that there is constitutional right to an abortion, or a constitutional right to marry someone of the same sex. And what you have is a Supreme Court that wanted to reach a certain policy outcome and so creatively manipulated the Constitution to discover a right that for over two centuries, some of the most brilliant minds and legal history didn’t find. (h/t Tengrain)

I assume in that last clause you're talking about Bush v. Gore and George W.'s right to prevent the Florida vote from being counted because that might violate his equal protection under the law? None of the most brilliant minds and legal history caught that one, for sure.

But the big thing is you really need to get your constitutional clichés straight. That "living breathing Constitution" line is mine, not yours, referring to the law that evolves in time, in which it's OK to use the Commerce Clause to force businesses serving interstate travelers (trains, hotels) to not discriminate against black people, even though James Madison and John Jay never thought of it.  Or women may have a right to a "pre-quickening" abortion even though it's not in the Constitution (it was legal everywhere in the Republic under common law until New York made it a misdemeanor in 1829).

Your "document of limitation" Constitution with no rights other than the ones Chief Justice Marshall imagined is the dead one with its face frozen in a permanent rictus. Or as Justice Scalia said of the living constitution theory,

"you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism; it is a legal document. It says something and doesn't say other things."

Or you could pretend to believe that's a valid view, but you'd still be an idiot.

Retroactionary justice

Via.

I would like to announce my intense disapproval of clever Judd Legum at TPM explaining how Prosecutor McCulloch did it wrong because hahahaha Antonin Scalia said so in United States v. Williams (1992):

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

And therefore there should have been no testimony from Darren Wilson or evidence suggesting his innocence.

Scalia's ruling in that case was pernicious and an invitation to prosecutorial misconduct and historically wrong. As Justice Stevens explained.

Legalism: No foul, no harm

Spoiler alert: I'm going to be working my way down to Obama here, but it's going to take a while...

Antonin Scalia. "The law is the true embodiment/Of everything that's excellent./It has no kind of fault or flaw,/and I, my lords, embody the law."

As everybody knows, in August 2009, when the Supreme Court ordered a Georgia judge to examine evidence that Troy Davis, convicted of murdering an off-duty police officer in 1989, was innocent, Justice Antonin Scalia dissented on memorable grounds:

Dred not, neither be afraid

Uncle Sam grabbing a wave, from CongressForKids.

Everybody's talking about former Boy Wonder Ralph Reed not comparing slavery to same-sex marriage, oh, not much:

“The battle looked like it was lost, but it really wasn’t,” Reed said of the immediate aftermath of the Dred Scott decision, which went on to embolden abolitionist activists. “And that’s kind of like where we are right now. Anybody heard lately that we’re losing the marriage issue? Anybody heard that argument? You notice some similarities? I’m not comparing slavery to same-sex marriage, OK? I’m just pointing out that when you have these fights, what’s interesting is that if you look at same-sex marriage, it’s now legal in 17 states....

Think before you Godwin

At the Lebensborn clinic in Wernigerode, where single women bore children for the Reich. Image from The Children of Nazi Germany.

From the Aspen Times, via:

Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.”  When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble. 

Apparently he had two kinds of laws in mind: those involving abortion and "homosexual sodomy". Did activist judges of the Weimar Republic bring on the Holocaust through their insistence on imposing their Jazz Age views on the sanctified constitution of the Germans?

Well, the constitution was written and adopted in 1919, so it doesn't seem likely that the Bundesgerichtshof of the 20s and early 30s represented a completely different [jump]

Truth can be painful, or make you spit out your coffee and get the keyboard dirty.

More of these at Top Conservative Cat's facebook page. Hey Newty, it's been a long time!