Well, maybe I'm not being fair but there is nothing "silly" about calling foul when a judge makes absolutist claims about what the law is and then selectively ignores those principles when making judgments.
If Ted Cruz said water was essential to life, I would seal off all the taps in my house. Excuse me? You know about Cruz's "sandblasting crosses and stars of David off the tombstones of war veterans" remark? Essentially "stabbed in the back" "protocols of the elders of Zion" kind of stuff. As for textual analysis, "it is clear that Scalia expressly thinks he is doing a textual analysis" is precisely the problem. Ammon Bundy thinks he is doing "textual analysis" of the constitution, too. There various protestant sects did and do textual analysis of the Bible as did and do Marxists of Das Kapital. I study and do textual analysis. There are two things I can say with confidence: 1. those who presume to know what a text or its author "really means" are seriously underestimating the complexity of authorship, intertextuality and reception; 2. those who would assign some transcendent status to a particular text are deluded in presuming that they know what that text really means. So, like I said, maybe I was not being fair to your original post. But then, again, maybe you weren't being fair. On Mon, Feb 22, 2016 at 12:36 AM, Shemano, David B. < [email protected]> wrote: > I kind of get your point, but I do not think you are being fair to my > original post. To repeat what I originally said, which you have not > addressed, is the silliness of someone who does not believe in textualism > criticizing Scalia for not being sufficiently textualist. It would be > like Ted Cruz criticizing Bernie Sanders for being insufficiently > progressive. Why should we pay attention to such a criticism? If the > point is that because Scalia strayed, textualism is problematic, that is a > real criticism, but that was not the author’s point. To the contrary, the > criticism only makes sense if textualism is feasible, which the author > presumably rejects. > > > > Since the criticism was self-evidently silly, I addressed the actual point > that the author was trying to make, which is that, notwithstanding Scalia’s > pronouncements regarding methodology, Scalia would always rule in a way > that coincided with his political preferences. I simply pointed out that > if that is the charge, the liberals are far more guilty, certainly compared > to Scalia. I don’t think that was changing the subject – it was the very > subject raised by the author. > > > > BTW, I encourage you to actually read Scalia’s opinions in Heller and > Citizens United (which by the way was a concurrence, not the main > opinion). In each of those opinions, it is clear that Scalia expressly > thinks he is doing a textual analysis, as opposed to ignoring the text and > going off on his own. You may disagree with the result itself, and you may > even disagree that Scalia’s textual analysis was the correct textual > analysis, but that does not mean Scalia was unfaithful to his own > methodology in those opinions. > > > > David Shemano > > > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Tom Walker > *Sent:* Sunday, February 21, 2016 11:46 PM > *To:* Progressive Economics > *Subject:* Re: [Pen-l] "Scalia was an intellectual phony" > > > > The criticism you found amusing was that Scalia "had no real fidelity to > the legal principles he claimed were synonymous with a faithful > interpretation of the law." The author gave examples. > > > > Your counterclaim was "...if you evaluated all the Judges and tried to > correlate their political preference and their judicial holdings, you would > probably find..." > > > > Your reply is a non sequitur. Whether or not political preferences > correlate with judicial holdings has no bearing on whether one is faithful > to particular legal principles one claims to be sacrosanct. One could vote > 100% consistently with both one's legal principles and political > preferences, if the two were in accord. On the other hand one might > arbitrarily sometimes sacrifice weakly held political preferences on the > alter of legal principles and at other times violate one's professed legal > principles on cases where one had strong political preferences). > > > > Argumentatively, what you did was change the subject and shift the burden > of proof. Essentially, what you did is similar to what the critic you found > amusing was saying Scalia did. As Senator Sam Ervin explained, in his > speech on censuring Senator Joseph McCarthy > > > > The following story is told in North Carolina: A young lawyer went to an > old lawyer for advice as to how to try a lawsuit. The old lawyer said, "If > the evidence is against you, talk about the law. If the law is against you, > talk about the evidence." The young lawyer said. "But what do you do when > both the evidence and the law are against you?" "In that event," said the > old lawyer, "give somebody hell. That will distract the attention of the > judge and the jury from the weakness of your case." > > > > > > > > On Sun, Feb 21, 2016 at 6:42 PM, Shemano, David B. < > [email protected]> wrote: > > Please do try and explain. What I don’t get is how I can be dishonest if > I don’t know that I am dishonest. I understand being wrong, but dishonesty > inherently implies I know that the arguments I make are wrong or > misleading, and I can assure you that is not true. > > > > David Shemano > > > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Tom Walker > *Sent:* Sunday, February 21, 2016 3:30 PM > > > *To:* Progressive Economics > *Subject:* Re: [Pen-l] "Scalia was an intellectual phony" > > > > "Not sure why my position was intellectually dishonest, let alone > cowardly, but I guess we are all entitled to our opinion." > > > > Yeah, I'm not sure myself why I bothered posting that. The intellectual > dishonesty would be obvious to anyone reading your reply but totally > obscure to you. I could explain but you would find my explanation > incomprehensible. > > > > Essentially it has to do with your assumption that the world is so ordered > that your opinions are "right" and the opinions you disagree with -- as > well as the evidence mustered in support of those opinions -- are "wrong." > Don't worry -- that kind of ego-centered epistemology is probably the rule > rather than the exception. > > > > On Sun, Feb 21, 2016 at 2:00 PM, Shemano, David B. < > [email protected]> wrote: > > Not sure why my position was intellectually dishonest, let alone cowardly, > but I guess we are all entitled to our opinion. > > > > Regarding the three opinions: > > 1. Heller. In the non-Scalia world, abortion is a constitutional > right, although not mentioned in the constitution, while the right to own a > gun, which is mentioned in the constitution, is not a constitutional right. > I think Scalia’s textual argument is the better argument regarding the 2nd > Amendment.. > > 2. Citizens United. According to the logic that corporations do > not have constitutional right, the government could prohibit the New York > Times from publishing articles criticizing public officials. There is > nothing in the text of the Constitution, including the 1st Amendment, that > would support that view, and no contemporary jurist, even the most liberal, > will go there. > > 3. Bush v. Gore. The case was so sui generis in so many ways, > difficult to draw any meaningful conclusion. > > > > What we do know about Scalia are two things. First, his efforts have > established textualism as the primary judicial methodology on the Court. > Just look at Heller – the liberal dissenters were compelled to fight the > battle on Scalia’s terms – what was the actual understanding of the > amendment at the time it was passed, as opposed to what is the general > understanding of what the law should be now? Second, Scalia has > consistently advocated textual arguments for positions that no one would > argue are politically “conservative,” such as his 6th Amendment > jurisprudence. > > > > Your dislike is obviously political – you don’t like his decisions, > period. As progressives, you believe there is no real distinction between > legislation and judicial decision making – both are simply exercises of > power, so you are unable, or unwilling, to analyze and consider Scalia as a > judge independent of the results of his decisions. I think Scalia’s > reputation in the mainstream, as opposed to progressive, legal world is > secure. > > > > David Shemano > > > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Tom Walker > *Sent:* Saturday, February 20, 2016 8:42 AM > *To:* Progressive Economics > *Subject:* Re: [Pen-l] "Scalia was an intellectual phony" > > > > Intellectually dishonest and cowardly response from David Shemano. The > article he is responding to cited three instances of Scalia deviating from > stated constitutional principles. Instead of challenging the claim in the > article, David ignores that argument and evidence and shifts instead to > correlations between political preferences and judicial holdings. David > presents NO (0) evidence, just a sweeping claim and a challenge to others > to do a massive analysis of supreme court opinions that would entail mind > reading about the justices political preferences. This is an entirely > specious diversion of the argument. > > > > On Fri, Feb 19, 2016 at 6:57 PM, Shemano, David B. < > [email protected]> wrote: > > I always find these criticisms amusing – the accusation by someone who > does not believe in textualism that Scalia not a sufficiently consistent > textualist. 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 > > > > > > -- > > Cheers, > > Tom Walker (Sandwichman) > > > _______________________________________________ > pen-l mailing list > [email protected] > https://lists.csuchico.edu/mailman/listinfo/pen-l > > > > > > -- > > Cheers, > > Tom Walker (Sandwichman) > > > _______________________________________________ > pen-l mailing list > [email protected] > https://lists.csuchico.edu/mailman/listinfo/pen-l > > > > > > -- > > Cheers, > > Tom Walker (Sandwichman) > > _______________________________________________ > pen-l mailing list > [email protected] > https://lists.csuchico.edu/mailman/listinfo/pen-l > > -- Cheers, Tom Walker (Sandwichman)
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