Here’s Richard Posner doing a close reading of Scalia’s “incoherence” in 2012:
https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism > On Feb 22, 2016, at 3:02 PM, Tom Walker <[email protected]> wrote: > > 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] <mailto:[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]> > [mailto:[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] > <mailto:[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]> > [mailto:[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] > <mailto:[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]> > [mailto:[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] > <mailto:[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]> > [mailto:[email protected] > <mailto:[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/ > > <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. 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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 <http://www.robinskaplan.com/> > ____________________________________________________ > > > _______________________________________________ > pen-l mailing list > [email protected] <mailto:[email protected]> > https://lists.csuchico.edu/mailman/listinfo/pen-l > <https://lists.csuchico.edu/mailman/listinfo/pen-l> > > > > > -- > > Cheers, > > Tom Walker (Sandwichman) > > > _______________________________________________ > pen-l mailing list > [email protected] <mailto:[email protected]> > https://lists.csuchico.edu/mailman/listinfo/pen-l > <https://lists.csuchico.edu/mailman/listinfo/pen-l> > > > > > -- > > Cheers, > > Tom Walker (Sandwichman) > > > _______________________________________________ > pen-l mailing list > [email protected] <mailto:[email protected]> > https://lists.csuchico.edu/mailman/listinfo/pen-l > <https://lists.csuchico.edu/mailman/listinfo/pen-l> > > > > > -- > > Cheers, > > Tom Walker (Sandwichman) > > > _______________________________________________ > pen-l mailing list > [email protected] <mailto:[email protected]> > https://lists.csuchico.edu/mailman/listinfo/pen-l > <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
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