On Fri, Feb 19, 2016 at 8:57 PM, Shemano, David B. wrote: > I always find these criticisms amusing – the accusation by someone who > does not believe in textualism that Scalia not a sufficiently consistent > textualist. >
No, that's not the accusation. Scalia is not a hypocrite; he is simply a fraud. Scalia was in fact extremely consistent in following his ideological belief; he simply lied about what that belief system was. This belief system had nothing to do with textualism or originalism; it can best be described as reactionism. "Comfort the affluent, afflict the powerless." In following this system, Scalia was consistent indeed. Btw Tom Walker is right: while it is true that all justices follow their political differences, it does not immediately follow that they are all equally partisan in that regard. It is not just a binary either/or; there are degrees. The article I cited describes three specific examples of rank partisanship on the part of Scalia. And there are many more where those came from. All we have from you is an assertion - without any proof or justification - of similar partisanship from the "liberal" justices. This is like all those centrist reporters claiming an equivalence between the Republican and Democratic Parties. It is completely bogus. -raghu. > Apparently, Scalia’s problem was not his judicial philosophy, but his > occasional hypocrisy. Perhaps he occasionally strayed – he was human, > after all -- but if you evaluated all the Judges and tried to correlate > their political preference and their judicial holdings, you would probably > find Scalia had the largest deviation. I challenge you to find a single > time that Ruth Bader Ginsburg (or Brennan or Marshall or any of the liberal > judges) ever made a material ruling inconsistent with her political > preferences. > > > > David Shemano > > > > *From:* [email protected] [ > mailto:[email protected] <[email protected]>] > *On Behalf Of *raghu > *Sent:* Friday, February 19, 2016 11:20 AM > *To:* Progressive Economics > *Subject:* [Pen-l] "Scalia was an intellectual phony" > > > > This needed to be said. > > > http://www.salon.com/2016/02/18/scalia_was_an_intellectual_phony_can_we_please_stop_calling_him_a_brilliant_jurist/ > > ----------------------snip > George Orwell once noted that when an English politician dies “his worst > enemies will stand up on the floor of the House and utter pious lies in his > honour.” Antonin Scalia was neither English, nor technically speaking a > politician, but a similar tradition can be witnessed in the form of the > praise now being heaped on him. > > [...] > > One of Scalia’s many obnoxious qualities as a jurist was his remarkably > pompous, pedantic, and obsessive insistence that the legal principles he > (supposedly) preferred – textualism in statutory interpretation, > originalism when reading the Constitution, and judicial restraint when > dealing with democratically-enacted legal rules – were not merely his > preferences, but simply “the law.” > > [...] > > But this kind of question-begging nonsense was the least of Scalia’s > judicial faults. For the truth is that, far more than the average judge, > Scalia had no real fidelity to the legal principles he claimed were > synonymous with a faithful interpretation of the law. Over and over during > Scalia’s three decades on the Supreme Court, if one of his cherished > interpretive principles got in the way of his political preferences, that > principle got thrown overboard in a New York minute. > > I will give just three out of many possible examples. In affirmative > action cases, Scalia insisted over and over again that the 14th Amendment > required the government to follow color-blind policies. There is no basis > for this claim in either the text or history of the amendment. Indeed > Scalia simply ignored a rich historical record that reveals, among other > things, that at the time the amendment was ratified, the federal government > passed several laws granting special benefits to African-Americans, and > only African-Americans. > > No honest originalist reading > <http://prospect.org/article/scalia-and-thomas-originalist-sinners> of > the Constitution would conclude that it prohibits affirmative action > programs, but Justice Scalia was only interested in originalism to the > extent that it advanced his political preferences. > > Similarly, the men who drafted and ratified the First Amendment would, > it’s safe to say, been shocked out of their wits > <http://www.law.harvard.edu/programs/olin_center/papers/pdf/Strine_812.pdf> if > someone had told them they were granting the same free speech rights to > corporations they were giving to persons. Again as a historical matter, > this idea is an almost wholly modern invention: indeed it would be hard to > come up with a purer example of treating the Constitution as a “living > document,” the meaning of which changes as social circumstances change. In > other words, it would be difficult to formulate a clearer violation of > Scalia’s claim that the Constitution should be treated as if it is “dead > dead dead.” > <http://www.msnbc.com/the-last-word/justice-scalia-constitution-dead> > > Finally, and most disgracefully, Justice Scalia played a key role in the > judicial theft of the 2000 presidential election. He was one of five > justices who didn’t bother to come up with something resembling a coherent > legal argument for intervening in Florida’s electoral process. A bare > majority of the Court handed the election to George W. Bush, and the judges > making up that majority did so while trampling on the precise legal > principles > <http://www.yale.edu/lawweb/jbalkin/articles/essayonbushvgore.pdf> > Justice Scalia, in particular, claimed to hold so dear: judicial restraint, > originalist interpretation, and respect for states’ rights. > > These examples are not rare deviations from an otherwise principled > adherence to Scalia’s own conception of the rule of law: they were the > standard operating procedure for the most over-rated justice in the history > of the United States Supreme Court. > > > > ____________________________________________________ > > Information contained in this e-mail transmission may be privileged, > confidential and covered by the Electronic Communications Privacy Act, 18 > U.S.C. Sections 2510-2521. > > If you are not the intended recipient, do not read, distribute, or > reproduce this transmission. > > If you have received this e-mail transmission in error, please notify us > immediately of the error by return email and please delete the message from > your system. > > Pursuant to requirements related to practice before the U. S. Internal > Revenue Service, any tax advice contained in this communication (including > any attachments) is not intended to be used, and cannot be used, for > purposes of (i) avoiding penalties imposed under the U. S. Internal Revenue > Code or (ii) promoting, marketing or recommending to another person any > tax-related matter. > > Thank you in advance for your cooperation. > > Robins Kaplan LLP > http://www.robinskaplan.com > ____________________________________________________ > > _______________________________________________ > pen-l mailing list > [email protected] > https://lists.csuchico.edu/mailman/listinfo/pen-l > >
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