Kaaren Hale RespondsSubject: ScaliaDear Richard, Thank you for sending me the commentary on Judge Scalia. These are confusing times, where we equate certain social and personal mores with the greater issues of governance and public defense . The initial flaws in the American Constitution were its sections on the acceptance of Slavery, the Great Compromise etc, and lawyers and justices have been battling out the implications ever since, ie what constitutues human rights, male and female. This tends, overall, to get into the defininition of a human (a slave was only 2/3rds as I remember) and now the fetus. Is it any wonder that large minded people are getting exhausted with the issue. Even Hilary, has oftferered a paw to the opposition in that being an intelligent woman (!) she realises that there is an issue over the basic perception of “what constitutes a human?”Many of us would like to turn back the clock on the liberal agenda. to some degree. FDR was a great man and a clever politician and as you well know, he tried never to get too far away from public opinion. You cannot lead in a democracy by upending all the established norms, ( that is called revolution) and he knew that. Whether by stealth or rationality, his programs of social participation and responsibility, the safety nets etc, took root and now these original humanistic concepts are mired down in an viscous mud of raging individualism and the near death of community solidarity . We just never know where things lead. Abortion is now leading to euthanasia, and perhaps euthanasia will lead directly to Nazi like assumptions of who should be born (already an issue) and who should have the right to live. It is all too much for me to figure out.I agreed with Bush on Iraq. I do not agree with the neo cons on Iran. The Iranians have a running battle since the fifties with the USA and they would, despite their anger at the mulluhs, defend any incursion to the death. So go not into Isfahan, Bushites. I believe the techtonic plates of the Middle East are moving and the Iranians have always said that if there were progress on the IS -PAL front they would accept it. Remember the Iranians did business with the Isrealis for decades.I do not agree with the Republican party on the issues of the environment at all, and their cynical exploitation of the religious right, the so called Rapture group, makes me hurl. I do not agree with their stance on Stem Cell research, as it will and must proceed and if American scientists are not free to pursue it, others will. I am convinced that economy is stronger, and hence keeps attracting Asian governments to our Treasuries, despite the recent pronouncements of the S Koreans , because of the tax cuts. The enormous deficit will prevent any movement on Social Security for the near term, though it wouldn't be a bad idea to raise the level on existing IRAs. Bush is very opposed to raising taxes, thus no SS change for the present. I would like to say that Gay Marriage is an issue for any social liberal, but frankly, after much soul searching, I am opposed. Why? It is far too radical an idea consitutuionally.Sometimes things should come into being through the back door, slowly, and incrementally. The Gay population are vociferous but they do not represent anyone but themselves. The rights they demand can be provided by legislation on legal cohabiting partnerships, ie a redefinition of living arrangements that non Gays choose as well. The Democrats hold them selves hostage every time they go too far left. What on earth can Howard Dean bring to the table but more divisions and finger pointing.Okay, so where am I. A fiscal conservative, aftraid of the diminishing value of the dollar, a social progressive who places some value on the lives of those who are less fortunate, with perhaps the misguided hope that their lives can be improved. We all read the same Bible and are concerned for the halt and the lame, the meek and the mild, and most of us would like to inherit the earth, if we can be bothered not to despoil it. At this stage I don't trust too many people to make the right choices for any of us. Judge Scalia is a traditionalist. And for only that, I respect his approach. Yours in confusion. Kaaren PS Amanda is getting very close to a decision on Faisel. It will be interesting how this plays. [Richard J. Garfunkel]LA Reich answer's on Scalia
Blaming Earl Warren for the interpretative evolving essence of the
Constitution? Antonin, the duck hunting Italian, disparages the
contributions of John Marshall, who served with Washington in the Virginia
militia, wrote his first biography and even penned a chapter entitled “The
Birth of Mr. Washington” as well as served in the Virginia House of Burgess.
Oliver Wendell Holmes, probably the greatest jurist to sit on the court
after Joseph Story, was wounded three times at Antietam, Balls Bluff and
Chancerlorville in the Civil War, and had the intellectual fortitude to
reframe and transform his positions on free speech during war time after
encountering the great appellate judge Learned Hand (probably two of the
most intellectual forces in American jurisprudence)on a train to upstate NY
(Hand idolized Holmes, yet he disagreed with his opinion in Debs, and was
willing to share that with the most revered legal philosopher in the land.
Within a short time of that meeting Holmes issued his most famous dissent in
Abrams. Holmes' house in Washington was filled with social and intellectual
visitors who surveyed the concepts and spirtit which captured this
democracy. That Scalia can can offer criticism for justices who stray from
their black robes into the fabric of society, reveals the vast wasteland
from which his own intellect holds center stage.
Scalia Slams Juvenile Death Penalty Ruling
Mon Mar 14, 7:53 PM ET
By HOPE YEN, Associated Press Writer
WASHINGTON – Justice Antonin Scalia criticized the Supreme Court's recent
decision to strike down the juvenile death penalty, calling it the latest
example of politics on the court that has made judicial nominations an
increasingly bitter process.
In a 35-minute speech Monday, Scalia said unelected judges have no place
deciding issues such as abortion and the death penalty. The court's 5-4
ruling March 1 to outlaw the juvenile death penalty based on “evolving
notions of decency” was simply a mask for the personal policy preferences of
the five-member majority, he said.
“If you think aficionados of a living Constitution want to bring you
flexibility, think again,” Scalia told an audience at the Woodrow Wilson
Center, a Washington think tank. “You think the death penalty is a good
idea? Persuade your fellow citizens to adopt it. You want a right to
abortion? Persuade your fellow citizens and enact it. That's flexibility.”
“Why in the world would you have it interpreted by nine lawyers?” he said.
Scalia, who has been mentioned as a possible chief justice nominee should
Chief Justice William Rehnquist retire, outlined his judicial philosophy of
interpreting the Constitution according to its text, as understood at the
time it was adopted.
Citing the example of abortion, he said unelected justices too often choose
to read new rights into the Constitution, at the expense of the democratic
“Abortion is off the democratic stage. Prohibiting it is unconstitutional,
now and forever, coast to coast, until I guess we amend the Constitution,”
said Scalia, who was appointed to the court by President Reagan in 1986.
He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court
that assaulted racial segregation and expanded individual rights against
arbitrary government searches, for the increased political role of the
Supreme Court, citing Warren's political background. Warren was governor of
California and the Republican vice presidential nominee in 1948.
“You have a chief justice who was a governor, a policy-maker, who approached
the law with that frame of mind. Once you have a leader with that mentality,
it's hard not to follow,” Scalia said, in response to a question from the
Scalia said increased politics on the court will create a bitter nomination
fight for the next Supreme Court appointee, since judges are now more
concerned with promoting their personal policy preferences rather than
interpreting the law.
“If we're picking people to draw out of their own conscience and experience
a 'new' Constitution, we should not look principally for good lawyers. We
should look to people who agree with us,” he said, explaining that's why
senators increasingly probe nominees for their personal views on positions
such as abortion.
“When we are in that mode, you realize we have rendered the Constitution
useless,” Scalia said.
Scalia, who has had a prickly relationship with the media, wasted no time in
shooing away photographers from the public event five minutes into his
“Could we stop the cameras? I thought I announced … a couple are fine at
first, but click click click click,” Scalia said, impatiently waving the
During a speech last year in Hattiesburg, Miss., a deputy federal marshal
demanded that an Associated Press reporter and another journalist erase
recordings of the justice's remarks.
The justice later apologized. The government conceded that the U.S. Marshals
Service violated federal law in the confrontation and said the reporters and
their employers were each entitled to $1,000 in damages and attorneys' fees.