Friday, September 21, 2012

Getting the last word

Seems like both sides wants the last word in the Scalia vs. Posner cage match.  Last we checked, Scalia called Posner a liar.  Posner responds, and it's covered here:

Now Posner has fired back in a two-page response that he provided to Reuters. "Responding to a Supreme Court Justice who calls one a liar requires special care in expression," Posner said in an accompanying email.
In the response, Posner said he was neither lying nor mistaken in his critique.
"Even if I accepted Scalia's narrow definition of 'legislative history' and applied it to his opinion in Heller, I would not be telling a 'lie,'" Posner wrote in his response. District of Columbia v. Heller is the Supreme Court decision striking down the Washington handgun ban.
In the interview with Reuters on Monday, Scalia said "legislative history" refers to history of the enactment of a bill in the legislature and covers floor speeches and prior committee drafts, not "the history of the times."
Scalia also called legislative history "garbage" and "the last remaining fiction of the common law," noting that lobbyists can get such history inserted into the legislative record to change the meaning of the text that is adopted.
In his response on Thursday, Posner defended his use of the term, writing that Scalia was using legislative history in the gun rights case when he turned to a "variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment."
Scalia may define "legislative history" narrowly, Posner wrote, but his co-author, Bryan Garner, does not. Posner quoted a definition from Black's Law Dictionary, of which Garner is the editor, that describes "legislative history" as: "The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates."
"Background and events leading to the enactment" of the Second Amendment are the focus of Scalia's opinion in the gun rights case, Posner argued.
He also cited pages from the opinion that discuss the Second Amendment's drafting history, which he called "legislative history in its narrowest sense."

1 comment:

Anonymous said...

Judge beef is getting old. Scalia is brilliant, but he is a bully and a buffoon, or, more importanly, he comes accross as a bully and a buffoon. Our justice system requires a general acceptance of judicial decisions. The credibility of judges and the view of judges as thoughtful, impartial arbiters are imperitive. Scalia's buffoonery and search for the spotlight detracts from that perception and erodes the confidence in judicial decisions.
tubby needs to grow up