Your comments about Justice Scalia remind me of how Lord Mustill described proper judicial conduct, when he delivered, late in 2007, the Privy Council Tribunal report re: the removal of our own Chief Justice here in Trinidad and Tobago. Lord Mustill said:
"...balanced sensitivity and distance... should be the halfmarks of a senior judge."
http://www.newsday.co.tt/mustill_report/0,70233.html
As a Princeton University student, I can say with certainty that we appreciated the irony of Justice Scalia receiving the James Madison Award. It kind of hurt.
Excellent point about his stance on torture. Now that hurts.
PingBack from http://www.marclamonthill.com/mlhblog/?p=5041
Marc,
I can't agree with your article enough, except for the reference to Scalia"s "less talented but equally obstinate brother, Clarence Thomas." Justice Thomas is even more conservative than Scalia. Beleive it, or not.
As both a liberal and a student of the law I tend to be a bit schizophrenic when it comes to Justice Scalia. On the one hand, he's been the strongest obstacle to what I (subscriber to the liberal agenda) would call progress - the decision immediately coming to mind being his opinion in Lawrence v. Texas. On the other hand, his legal abilities are astounding and his opinions are not just persuasive, enjoyable and humorous, but also, as a legal matter, usually (possibly) correct. Which is not to say that the result produced on the ground is the most socially preferable one in my eyes, but instead that perhaps Scalia's judicial philosphy makes more sense.
Your article at best misses the point, and at worst furthers Scalia's. The role of the judiciary isn't to make law, Scalia would say, but instead to interpret it. Advocating a "democrat" judge just further shows that what the liberal judges are doing only serves to politicize the judicial branch. If all they're doing is interpreting, then what do we care if they're liberal or not, so long as they are competent? However, if we want a judge to impose his own ideas of what is socially proper, then let's make sure that we appoint a judge who believes in a "living constitution" (or, as Scalia would say - a Constitution that they can make up as they go along).
I'm not saying I completely agree with Scalia's philospohy (contrarily, I probably think it's ok to have a government position isolated from the political winds which can make substantive law) but if that's what we're advocating we should know that's what we're advocating.
Finally, I can't help but point out the ridiculousness of two of your statements. First, "As both a constitutional originalist and statutory textualist, Scalia and his colleagues have been an ally to some of the most anti-democratic and anti-humanist policies in recent history." Anti-humanist maybe (though that's a pretty loaded label), but anti-democratic absolutely not. Scalia's entire point is that substantive law should be left to legislators - If Congress or the states want to allow (or prohibit) abortion, that's fine, let's not stop them. Did you just throw in "anti-democratic" because it was a good buzz-word or do you really think that using open-ended provisions to block legislative action is anti-democratic? Second, "By arguing that “enhanced interrogation techniques” (which is conservative slang for torture) do not violate the Eighth Amendment, Scalia willfully ignores the obvious need to link authorial intentionality to contemporary context." Authorial Intentionality to contemporary context...? The pretension in that phrase made me puke on myself.
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