Antonin Scalia

American Justice Is Not Blind, It's Sick

dlindorff — Thu, 20 Aug 2009 13:45:32 -0400

By Dave Lindorff

Supreme Court Justice Antonin Scalia and Federal District Court
Judge Fernando Gaitan of the Missouri Western District Court have at
least two things in common: they are both appointees of President
Ronald Reagan, and they both think it’s just fine for the US to execute
innocent people. The same can be said for Judge C. Arlen Beam of the
8th Circuit Court of Appeals.

In a recent dissent in a 5-4 Supreme Court ruling ordering a habeas
hearing in federal court for South Carolina death row inmate Troy
Anthony Davis, a man slated to die after being convicted for the murder
of an off-duty Savannah police officer, Scalia wrote, “This court has
never held that the constitution forbids the execution of a convicted
defendant who has had a full and fair trial but is later able to
convince a habeas court that he is `actually’ innocent.”

For his part, Judge Gaitan, in Missouri, had two shots at
considering the case of Joseph Amrine, a death-row inmate slated to die
for the killing of a fellow prisoner in a Missouri state prison. Amrine
(see my article Dead Man Walking Home
in Salon, May 1, 2003) had been convicted of the knife slaying on the
basis of the testimony of three alleged eyewitnesses—all of them fellow
prisoners. When two of those witnesses later recanted (suggesting that
it was the third witness who had actually been the killer), Judge
Gaitan rejected the habeas appeal, arguing that the two recantations
couldn’t be believed, because the third witness had not changed his
testimony. Later, when the third witness also recanted, Amrine’s
attorney brought the case back to Judge Gaitan, but this time, the
Judge again rejected the appeal, claiming that none of the witnesses
was credible “because they are all criminals.” (Which of course begs
the question of why Amrine should have been convicted in the first
place based upon the testimony of the same three witnesses.).

Amrine didn’t get any help from the 8th Circuit Court of Appeals,
which is also apparently packed with Scalia-like vampires. A
three-judge panel on that court, which included Reagan-appointee Judge
Beam, as well as Clinton appointee Diane E Murphy and George H. W. Bush
appointee Judge Morris Sheppard Arnold, unanimously upheld Judge Gaitan
declaring that even if the three recantations might suggest Amrine was
innocent, he could not get a new hearing or trial because his attorneys
should have been able to discover the evidence earlier through “due
diligence.” The judges, in rejecting Amrine’s appeal, wrote that, “even
though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently,” an appellate court had to
defer to the determination regarding credibility of recanting witnesses
made by a lower court judge.

That is, procedural issues and rules trump facts, even in a death penalty case.

Happily for Troy Davis, a frighteningly narrow majority on the US
Supreme Court disagreed with Justice Scalia’s view of the Constitution.
Happily for Amrine, who is now a free man, the Missouri State Supreme
Court disagreed with both Judge Gaitan and the 8th Circuit Court of
Appeals panel, concluding that "a showing of actual innocence acts as a
'gateway' that entitles the prisoner to review on the merits of the
prisoner's otherwise defaulted constitutional claim."

Justice Scalia’s pinched view of the Constitution is that if it
ain’t written down in the document, it doesn’t exist. So even though
there is a clear outlawing in the Constitution against “cruel and
unusual” punishment, he purports to be unable to see how that could be
construed to include being executed for a crime you did not commit.

It should sicken every American that our judicial system could
condone execution of people that even the judges themselves concede are
likely or even certainly innocent, because of procedural rules and
politically imposed deadlines and appeals limitations, such as those
imposed by former President Bill Clinton’s Anti-Terrorism and Effective
Death Penalty Act, passed in 1995 in the hysteria following the
Oklahoma City bombing of the Murrah Federal Office Building.

I once had the grisly experience, back in 1995, of watching several
doomed men being carted off by armed police in the back of a flat-bed
truck for a date with a bullet to the back of the head on the execution
in Xian China. I remember thinking at the time what a monstrous and
uncivilized act this was. The trials in China are in name only, with
the verdict pre-ordained, and any appeals, if they happen, perfunctory.

Yet how different are things here in the US? There is the same
bloodthirsty slathering for public execution by the ghouls on the
right, the same quiescence among the broader population. There is,
perhaps one difference, and that is the political pandering to the
death-obsessed by politicians who should know better. Those
Reagan-appointed judges—Scalia, Gaitan and Beam—and the many like them
on federal and state benches across the country, were appointed
precisely because they wanted to grease the skids to the execution
chamber, and President Reagan, like Nixon before him and the Bushes
after him, have made advocacy of state-sanctioned execution a lynch-pin
of their campaign efforts. But President Clinton was no different. He
cut short his campaign for president so he could rush home to Arkansas
to sign the execution warrant for a mentally impaired man, and later,
pushed through the EDP Act to make appeals of death-row inmates much
more difficult.

President Obama is not much better. While he has not yet signed on
to any efforts to make executions easier, neither has he acted, as
president, to correct the current abysmal situation, which has seen
many people spend years or even decades on death rows, often coming
within days or hours or even minutes of execution before finally being
found innocent, and which has surely led to many executions of innocent
people over the years. Disturbingly, Obama has use the argument of
“public vengeance” to justify the death penalty, writing in his memoir,
that while he believes the death penalty "does little to deter crime,"
he nonetheless supports it for crimes "so heinous, so beyond the pale,
that the community is justified in expressing the full measure of its
outrage by meting out the ultimate punishment."

Surely Obama is smart enough to recognize that when a community is
so enraged, that is precisely when the fairness of a trial becomes
hardest to assure, and thus, when the chance of a wrongful conviction
becomes the most likely. And yet he finds it safer to politically
pander to those base instincts for vengeance.

At times like these, I am sorry I’m an atheist. It would be nice to
think that there would be some special grim level of hell in store for
the likes of Justice Scalia, Judge Gaitan, and Judges Beam, Arnold and
Murphy—perhaps a row of cells from which they would be marched every
few days to be strapped onto gurneys and administered an intravenous
death potion, or into electric chairs through which a surge of high
voltage would be sent, only to return to their cells for another round
of waiting. Also for the likes of Nixon, Reagan, Clinton, the Bushes
and, yes, Obama, who would be case before howling mobs of the wrongly
executed, who would call for their execution, after which they could be
marched off to the same fate over and over.

Unfortunately, there is no such divine justice. Only the hope that
one day, a more civilized and compassionate public will demand better
of itself, its political leaders, and its judges.

There is no greater crime than the killing by the state of an
innocent person, and yet, in America, such atrocities are not just
happening, they are condoned by judges in the highest court of the land.
_____________________

DAVE LINDORFF is a Philadelphia-based journalist. He is author of
“Killing Time: An Investigation into the Death Penalty Case of Mumia
Abu-Jamal,” (Common Courage Press, 2003) and more recently of “The Case
for Impeachment” (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net

When It Comes to Terrorism and POW Cases, Equal Justice Under the Law is a Joke

dlindorff — Mon, 05 Jan 2009 11:09:59 -0500

By Dave Lindorff

Last week, a US federal district judge, Henry Kennedy, ruled in
favor of a case brought by the survivors of the crew of the USS Pueblo,
a spy ship captured by the North Korean Navy in 1968, who were held
prisoner by North Korea for 11 months, and who were reportedly tortured
in captivity. The judge awarded the men $65 million in damages from the
state of North Korea.

Now I’m happy for the plaintiffs. Torture is flatly banned under
international law, and nobody should be tortured under any conditions
(whatever Supreme Court Justice Antonin Scalia may think). But let’s
not ignore the irony of this ruling. In general, the federal courts
have been incredibly reluctant about making such rulings against the US
government for doing the same thing that North Korea did, or even worse.

Take the case of Canadian Maher Arar, a telecommunications engineer
of Syrian birth who was nabbed by US intelligence officers in an
airport transit hall at New York’s Kennedy International Airport in
2002 while returning home from a vacation in Tunisia. Arar was held
without a lawyer, interrogated, and then renditioned on a CIA plane to
Syria, where he was handed over to Syrian secret police to be tortured
and interrogated and kept in a basement cell for 11 months. The
brutalized Arar was later released when it was established that he had
no connections to terrorism.

But while Canadian authorities have apologized to Arar, US courts
have so far refused to even allow him to sue the US over his captivity
and torture, accepting the US government’s claim of “national security.”

The contradictions between the handling of these two cases are
striking. In the Pueblo instance, the ship was engaged in spying
activity at a time that the US and North Korea were technically still
at war. The US claims that the crew should not have been captured
because the vessel was allegedly in international waters, though that
actually would be no defense. After all, during wartime, it is common
for navies to sink enemy ships anywhere they find them. (North Korea
insists the ship was inside its territorial waters at the time of
capture.)

Meanwhile, Arar was grabbed by American authorities while
technically outside the US, as he was simply changing planes at Kennedy
and had remained in the international plane changing zone of the
terminal, outside the passport check.

Furthermore, there is no dispute that the Pueblo crew was involved
in military activity at the time of their ship's capture. They were
gathering intelligence on a nation against which the US was at war.
That, of course, does not justify their torture, but it makes their
capture much more legitimate than what happened to Arar.

Arar, after all, was not even arrested. Nor was he involved in any
military or intelligence or even criminal activity. He was simply
kidnapped by American intelligence operatives. He was then renditioned
to a third country, which is itself a crime under international law, to
be tortured, which compounds the felony. And yet he has thus far been
denied the right even to sue the US government for damages. Even if we
were to hand the US government all the benefit of the doubt, and
concede that they might have been acting on false information
suggesting that Arar was an active terrorist, that would still not
justify what they did to him. He should have at least had some kind of
a hearing in US custody, and then, if found to be a likely terrorist,
should have been either held in US custody or deported to his home
country of Canada. He should never, under any circumstances, have been
handed over to the security agency of a third country known to torture
its captives.

And yet Arar is not allowed to sue for the criminal torment he was
put through, while the Pueblo crew is awarded $65 million. (His case is
currently being reconsidered by the full bench of the New York Federal
Court of Appeals, which heard arguments on Dec. 9.)

Nor is he alone. While US courts have agreed that the hundreds of
captives held at Guantanamo Bay and in military brigs in the US in the
so-called “war” on terror have a right to bring their cases before a
federal court, for the most part those courts have shown extreme
deference to the Justice Department and have been upholding the right
of the US government to detain people indefinitely without charge. Even
though it is admitted that many or even most of these captives have
been subjected to torture at the hands of their American captors, they
have not been able to sue for damages. As late as last fall, one
unnamed Guantanamo detainee who sued to require his captors to provide
him with a mattress and a blanket had his case tossed out by a federal
judge, Thomas Hogan, who, astonishingly, ruled that “while the Supreme
Court’s decision in Boumediene gives Petitioner the right to
challenge the fact of his confinement…it says nothing of his right to
challenge the conditions of his confinement.”

Read that again please. A federal judge says he has the full
authority to consider whether a terrorism detainee is being properly
held—which clearly infers that at least some of the hundreds of
detainees in US custody may be improperly held—but he is not allowed to
rule on the conditions of their detention? This would be like saying a
state court has the right to rule on whether a foster child has been
properly assigned to a foster family, but no right to rule on how that
child is being cared for!

A foundation principle of American justice is supposed to be “equal
justice under the law.” Yet here we have a federal judge awarding $65
million to the crew of the spy ship Pueblo, in large part because of
allegations regarding the conditions of their confinement as POWs in
North Korea, while other judges in the same court system have ruled
that a man falsely captured and sent off to be tortured by a foreign
dictatorship’s secret service has no right to even bring his case and
that another cannot has no right to sue to get a mattress to sleep on
or a blanket to keep himself warm!

The promise of equal treatment under the law is honored in the
breach in many ways in courtrooms across America every day, of course,
but in the case of terrorism and POW issues, there isn’t even an
attempt to pretend American courts are fair.
_________________

DAVE LINDORFF is a Philadelphia-based journalist and columnist.
His latest book is “The Case for Impeachment” (St. Martin’s Press,
2006). His work is available at "www.thiscantbehappening.net

Why I'm Voting for Barack Obama on November 4

dlindorff — Wed, 15 Oct 2008 16:04:31 -0400

By Dave Lindorff

Okay, I was going to vote for Ralph Nader this November 4.

It was an easy decision. I live in Pennsylvania, which is now,
according to all the polls, reliably in the Obama column, with the
Democratic candidate holding an insurmountable lead in the polls of 14
percent over Republican John McCain—enough to overcome even the most
devious Republican vote suppression techniques and voting machine
chicanery.

I was going to vote for Nader because I find Obama to be a
seriously flawed candidate. He ran early on an anti-Iraq War platform,
saying not that invading Iraq was wrong legally and morally, but that
it was “the wrong war.” Since then, he has backed away even from saying
he wanted the war ended, opting for a 16-month withdrawal timetable
that would have the killing and dying in that sad land going on longer
than most wars this nation has fought. He has also called for an
escalation of the war in Afghanistan, despite clear evidence that more
troops just will make the situation there worse, and has called for an
expansion of the US military budget, to increase the size of the Army
and Marines, which will only encourage more warmongering, more killing
and more waste of precious resources.

Obama also sold us all out by going along with a bill sought by
President Bush granting immunity to telecom companies that aided and
abetted the illegal and unconstitutional spying on Americans by the
National Security Agency—spying that we now know is massive almost
beyond our imagination, even including the monitoring of private family
conversations of American service personnel in Iraq, of journalists,
and almost certainly of Bush administration political “enemies.” By
backing that obscene bill, Obama has made it almost impossible for
victims of this police-state surveillance campaign to sue and find out
what the Bush/Cheney administration has been up to all these years.

In so many ways, Obama has tacked to the middle or even the right, while spouting soaring but empty rhetoric about “change.”

Meanwhile, everything Ralph Nader says makes perfect sense. He has
consistently called the Iraq and Afghanistan wars the crimes that they
are. He has consistently called for a nationalized health care system,
which every other modern nation has long since proven to be a more
cost-effective and health-effective way to run a medical system than
the failed free-market approach advocated by Obama and the rest of the
Establishment political system. He has correctly denounced the economic
bailout as welfare for the rich and for the corporate criminals who
have been sucking the life out of the US economy for years.

And yet, I think I have to vote of Obama this year.

The reason is partly because I know I would vote for Obama if I
lived in Ohio or Indiana, where the race between McCain and Obama is
too close to call, and so, to vote for Nader when it is simply safe to
do so here in Pennsylvania is really a cop-out.

But even more important, when I see the hate-filled racists and
right-wing yahoos braying at McCain and Palin rallies, when I hear
people calling for Obama to be killed or lynched, and when I see the
rabid hate mail circulating in email inboxes falsely labeling him as a
secret Muslim, a terrorist, a Marxist and a black nationalist, I want
to see the man resoundingly win this election.

But it’s more than that. I also, perhaps against all logic and
experience, admit that I expect something good of an Obama presidency.

Call me naïve, but based upon my own life experience, I keep
thinking that a guy who has worked as a community organizer, a Harvard
Law School grad (and even law journal editor!) who could have named his
price at a Wall Street law firm, but who chose instead to be a
political and community activist, a guy who has relatives who live in
humble surroundings in Kenya, and who spent some of his childhood
actually living in a Third World Asian nation, not to mention a guy who
has surely felt the sting of being called a nigger, has to bring
something new to the White House. Certainly no other president in the
history of the country has come to the office with such a background.

Sure Obama is no leftist candidate. But if he were, he wouldn’t be
heading for an election victory. He wouldn’t even be the Democratic
nominee. He’d be, at best, where Dennis Kucinich is—holding a seat in
Congress where his every progressive effort would be stymied or mocked
by the House leadership.

The unfortunate reality is that the true left in the US is a joke
(many of its purists even mock successful left candidates political
figures like Kucinich, for god’s sake!). Fractured and fractious small
groupings have little or no link to the organized labor
movement—traditionally the bedrock of any successful left political
power. And the labor movement itself is as weak as it has ever been and
keeps growing weaker. The left in the US, such as it is, has even less
connection with the broad mass of the American public, thanks to years
of successful propaganda linking it to Stalin, Mao and Soviet Communism.

I have no illusions about the progressivity of the Democratic
Party. Certainly it has its progressive elected officials who have made
it into office—people like Kucinich, Sen. Bernie Sanders, Sen. Russ
Feingold, Rep. Maxine Waters and the like. But clearly, the Democratic
Party has shown itself to be in thrall to the moneyed interests on Wall
Street and in the corporate suites.

That said, there are important things that could happen—and I
stress the word could, not would—if this election were to be won by
Obama and by Democrats in the Congress. One of these things is that
there will be new Supreme Court justices named over the next four
years. Some will inevitably replace some of the aging “liberals” on the
bench (some of whom have not always been so liberal on economic
issues). Some could also replace current conservative justices
(Justices Antonin Scalia and Clarence Thomas, both obese men, don’t
look terribly healthy to me, Justice Kennedy is getting on in years,
and even Chief Justice Roberts, while looking hale, has a problem with
epilepsy or some other ailment that has caused him to collapse in a
frothing fit of unconscious on occasion).

Also important is legislation to make it less of an obstacle course
for workers to win union representation and labor contracts on the job.
A major reason that unions have shrunk from over 30 percent of the
workforce in the 1950s to just 9 percent of the private workforce (and
13 percent of all workplaces, public and private) today, is that labor
law has been whittled away and turned to management’s advantage to such
an extent that it is almost impossible now to win a union election.
Employers who break labor laws suffer no penalty even when found
guilty, and workers who are unfairly fired for union activity can hope,
at best, if they are lucky, to win reinstatement and back pay after
fighting for years. Most just give up.

If a Democratic Congress passed new labor legislation and a
President Obama signed them into law, as he has promised to do, and if
new pro-labor officials were appointed to the national, regional and
local labor relations boards that adjudicate labor issues, we could see
a genuine revival of the labor movement in America with consequences
for workers’ lives, and for the political system that would be far
reaching and profound—and that could even pave the way for a resurgence
of a left/labor political movement.

Finally, with respect to war and militarism, I tend not to take
Obama’s warmongering seriously. Given the man’s background, I am
confident that he is not a militarist by nature. It may be politically
opportunistic for him to try during this campaign to out-tough McCain
on Afghanistan while calling for a wind-down of the war in Iraq, but it
would be a disaster for him to pursue a wider war in Afghanistan after
taking office, ensuring that his presidency, like Bush’s, Lyndon
Johnson’s and Richard Nixon’s before him, would be dragged down by an
endless bloody conflict.

A President Obama will have his hands full trying to deal with an
unprecedented financial fiasco, and will want the wars off his plate as
quickly as possible. Maybe I’m being a Pollyanna, but I simply can’t
see a smart guy—and Obama is a smart guy—getting dragged into another
quagmire.

Besides, I have a darker vision, which is that the crisis of global
warming, so long denied by the Bush administration, is going to make
itself felt soon in ways that will be impossible to ignore, and which
will demand a crisis response. Obama, I believe, will be the right
person at the right time, to lead that response.

And that brings me to the final reason I am voting for Obama. As
crazy as John McCain clearly is, with his default setting on war as a
solution for all problems, this sickly and possibly terminally ill old
man has chosen to have a certifiable right-wing, closed-minded, bigoted
and stunningly ignorant religious zealot as his back-up. Sarah Palin,
as vice president, would in all probability end up becoming president
during a McCain first term.

This country and the world simply cannot risk having as the leader
of America an end-of-times believer at this critical moment. It’s not
just the polar bears and the wolves in Alaska who would suffer under a
Palin presidency. It would be all life on earth.
_____________

DAVE LINDORFF is a Philadelphia-based journalist and columnist.
His latest book is "The Case for Impeachment" (St. Martin's Press, 2006
and now available in paperback edition). His work is available at www.thiscantbehappening.net

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Bush Court to Women: Drop Dead

Bob Fertik — Wed, 18 Apr 2007 15:17:03 -0400

NOW's outstanding President Kim Gandy speaks for me:

Today the Supreme Court upheld this nation's first abortion procedure ban—a ban enacted by George W. Bush and conservatives in Congress. Five justices, including Chief Justice John Roberts and Associate Justice Samuel Alito—both installed by Bush and a Republican-majority Senate—ruled that the law does not violate a woman's constitutional right to abortion.

Not since Bush v. Gore has the Supreme Court made such a political decision, or one that so completely distorts the law and disregards the U.S. Constitution.

The law is so vaguely written that it may ban the most common abortion procedure used after 12 weeks of pregnancy, and there is no exception to allow its use if the woman's health is in serious danger. The joint ruling in Gonzales v. Carhart and Gonzales v. Planned Parenthood is a major step in the campaign to outlaw all abortions, first by chipping away at and then by fully overturning Roe v. Wade.

Bush used his allies' control in Congress to push through anti-abortion legislation, and he used their power to confirm anti-abortion justices to the Supreme Court—justices who have now upheld that same legislation.

The National Organization for Women and other advocates predicted as much, and fought tooth and nail against the confirmation of Roberts, and even more passionately against Alito, who replaced Justice Sandra Day O'Connor. Now we see that apparently, everything Roberts and Alito said at their confirmation hearings about respecting precedent was a pack of lies.

When the time came for women's rights supporters in the Senate to prevent confirmation of Sam Alito, the "fifth vote" against abortion rights, only 25 senators stood up for women. And indeed he was the fifth vote for the majority in today's decision. The senators who voted to end the Democratic filibuster, thus allowing Alito to join the court, must be reminded that their failure led to this day. We must stop the stacking of the federal courts and work toward a congressional majority that supports women's rights.

Tellingly, seven years ago in Stenberg v. Carhart, the Supreme Court ruled against an almost identical ban enacted in Nebraska. The clear precedent set by Stenberg in 2000 was the reason three U.S. Courts of Appeal declared the federal ban unconstitutional. But last year the Bush administration pressed on with appeals to the Supreme Court by Attorney General Alberto Gonzales.

So why did Gonzales forge ahead when a clear precedent had been set only six years earlier? And why did the court uphold this ban, effectively undoing that precedent? In the dissenting opinion, Associate Justice Ruth Bader Ginsburg explains it quite clearly:

"Though today's opinion does not go so far as to disregard Roe or Casey, the Court, differently composed that it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of the 'rule of law' and the 'principles of stare decisis.'"

In other words: The Supreme Court changed, stupid!

This is a clarion call for feminists, progressives and everyone who cares about justice, equality and democracy. We must link arms and say "No more."

We must elect a Congress that will repeal this ban and a president who will sign the repeal.

November 2008 can't come soon enough.

Supreme Court to EPA: Regulate Green House Gases

Chip — Mon, 02 Apr 2007 16:34:29 -0400

In a ground-breaking 5-4 decision the Supreme Court ruled today that the Environmental Protection Agency has the power to regulate the polluting emissions of carbon dioxide and other greenhouse gases from vehicles. The decision moves Bush administration further along the path from its former position of complete and aggressive denial of global warming to tepid acknowledgment, now forcing the Bush administration to recognize and regulate carbon dioxide as a pollutant under the Clean Air Act. The court's decision underscores the reality of human activities contributing to global warming.

The Bush Administration had argued that the EPA had no authority to regulate motor vehicle admissions under the Clean Air Act. The Supreme Court’s decision also throws into question the Bush Administration’s rejection of the Kyoto Protocol, further embarrassing the Bush Administration in the world community.

"A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related," Justice Stevens wrote. Noting that the administration offered "no reasoned explanation" for not acting on the question of whether greenhouse gases should be regulated, the majority opinion cited the EPA’s position as "arbitrary, capricious or otherwise not in accordance with law."

The agency plans to review the ruling and decide how best to interpret it, which could take through the end of Bush’s term.

The decision comes at a time when American automakers are bankrupt and struggling to stay afloat in the face of foreign competition more appealing and responsive to consumer needs and desires. American auto makers are reintroducing ways to appeal to global markets. An electric car was introduced in 1890. Popular electric vehicles were introduced for lease in California and a popular film "Who Killed the Electric Car?" tells the story of its crushing demise early in the decade.

The majority opinion was written by Justice John Paul Stevens, who was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, and David Souter. Dissenters were Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

Justice Scalia wrote in his dissent: "The Court's alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation...No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency."

'Fat' Tony's Ready to Repeal Roe v. Wade

CactusPat — Thu, 19 Oct 2006 01:32:10 -0400

"Fat" Tony Scalia makes no bones about it. He'd repeal Roe v. Wade if given the chance. And says as much in a televised debate with the ACLU's president, Nadine Strossen. The debate in and of itself is a milestone for Scalia who's had a penchant for banning the media from his public appearances. Is this a public rolling out of the radical right-wing judicial agenda?

Scalia debates head of ACLU on TV
Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions. Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues. Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach."...
"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said.

"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said.

Strossen countered that such a legal approach would have barred the landmark 1954 ruling in Brown v. Board of Education, a unanimous decision outlawing racial segregation in public schools.

"There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be," she said. "And who is better positioned to represent and defend and be the ultimate backstop for rights of individuals and minorities than those who are not directly accountable in the electoral process — namely federal judges?"

The ACLU debate comes as the Supreme Court this term will hear closely divided issues involving partial-birth abortion and school integration. They are expected to test the conservative impact of the court's two newest members, Chief Justice John Roberts and Samuel Alito.

Scalia, 70, has consistently voted to limit the use of race in school admissions and has called for the 1973 Roe v. Wade decision establishing a woman's right to abortion to be overruled. But his influence was often limited by moderate Sandra Day O'Connor, who cast deciding votes on those issues against him.

With O'Connor now retired and Alito succeeding her, Scalia — whom President Bush passed up for chief justice — will have new opportunities to sway his new colleagues and centrist Anthony Kennedy closer to his viewpoints.

During Sunday's debate, Scalia outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. He reiterated that race has no place in school admissions, a viewpoint that put him on the losing side in 2003.

"The Constitution very clearly forbids discrimination on the basis of race," Scalia said in response to a question by moderator Pete Williams of NBC. "It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."

Scalia, who marked his 20th anniversary on the court last month, generally finds himself taking the opposite position to the ACLU. Most notably, he wrote a majority 5-4 opinion last term giving police more leeway to enter private homes.

He also unsuccessfully sided with the government in cases where the court struck down Ten Commandments displays in Kentucky courthouses and declared that the military commissions President Bush established to try suspected al-Qaida members were unconstitutional.

But during Sunday's debate, Scalia noted there were cases in which he and the ACLU agreed. They included rulings upholding flag burning and a 2004 opinion arguing that a U.S. citizen seized in Afghanistan in wartime could challenge his detention as an enemy combatant in U.S. courts.

Strossen, who enjoys a friendly relationship with Scalia despite their differences, applauded those opinions but added, "I don't want you to think you're too popular with this group."

"I'm very distressed about your failure to find protections in the Constitution for the right of consenting individuals in their homes to decide what they see and read, and what type of sexual relations they have," she said as hundreds of ACLU audience members cheered.

Scalia, who has at times had a prickly relationship with the media, agreed to have C-SPAN televise Sunday's event live — a more recent accommodation as the court begins to show greater signs of openness under Roberts.

You can stream the video from C-SPAN - rtsp://video.c-span.org/15days/e101506_civilrights.rm?mode=compact (copy and paste url into RealPlayer via file/open). Also check out all the streams available at the ACLU website....

Scalia Joins the GOP "F" Club

Bob Fertik — Mon, 27 Mar 2006 15:40:36 -0500

George Bush has given the finger or said the "f" word many times. The image on the left was on TV back in 1995. In March 2002, Bush told Senators "F__ Saddam, we're taking him out."

Bush isn't the only powerful conservative Republican to engage in this profanity. Dick Cheney famously said "Go f___ yourself" to Sen. Pat Leahy on the Senate floor.

The latest profanity report involves one of the most conservative Republicans of all, Supreme Court Injustice Antonin Scalia.

U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by flipping a middle finger to his critics.

A Boston Herald reporter asked the 70-year-old conservative Roman Catholic if he faces much questioning over impartiality when it comes to issues separating church and state.

"You know what I say to those people?" Scalia replied, making the obscene gesture and explaining "That's Sicilian."

The 20-year veteran of the high court was caught making the gesture by a photographer with The Pilot, the Archdiocese of Boston's newspaper.

"Don't publish that," Scalia told the photographer, the Herald said.

When will conservative Christians realize they have been fooled into putting immoral thugs in power?

Let's impeach the Supreme Court's Felonious Five

Bob Fertik — Mon, 11 Apr 2005 22:10:58 -0400

Republicans are talking about impeaching judges for wretched decisions.

Good! Let's impeach the Supreme Court's Felonious Five for Bush v. Gore - the most wretched decision since Plessy.

From today's First Read:

Back to all the talk of retribution against judges. We wondered whether or not Congress actually can impeach judges over decisions it doesn't agree with. The constitutional scholars we talked with don't think so. Yale law professor Bruce Ackerman cites the 1804 impeachment -- and acquittal one year later -- of US Supreme Court Justice Samuel Chase, who Ackerman says was accused, with some justification, of partisanship and serious judicial mistakes. "Just making legal mistakes is not ground for impeachment," he says. "We've had this argument before."

Ackerman adds that this doesn't mean the debate can't take place again -- but that overturning such a precedent would be "a wrench in a 200-year tradition." (He notes that judges who commit high crimes and misdemeanors, like corruption, can be impeached.) Rehnquist made a similar point in a 2003 speech: "The significance of the outcome of the Chase trial cannot be overstated... [I]t represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties. The political precedent set by Chase's acquittal has governed that day to this: a judge's judicial acts may not serve as a basis for impeachment."

Neal Katyal, a law professor at Georgetown University, argues that there has to be some remedy or check for extreme judicial errors. Nevertheless, he says, "We've had a number of what I think many would consider terrible decisions by the courts over the years, and you don't go running to the impeachment tool every time one of them comes to a decision you don't like."

House Judiciary Committee spokesman Jeff Lungren tells First Read that the committee's counsels "agree that we don't impeach for bad opinions." He adds, however, that it would be wrong to think that the federal judiciary is completely independent or immune to congressional oversight -- noting that Congress sets judges' salaries, that it can impeach them for crimes and misdemeanors, and that it can pass laws switching jurisdiction from state courts to federal ones (as it did with its recent legislation regulating class-action lawsuits).