Sunday, February 14, 2016

Some quick thoughts on Scalia and going forward

Love him or hate him, he was the most gifted (and entertaining) writer we have ever seen on the Court. "Applesauce" "Jiggery-pokery" "Argle-Bargle" "SCOTUScare"

And he was not at all predictable (like Alito/Thomas). In fact, he jokingly called himself the "best friend" of criminal defendants. And he was!  He was the lone vote to strike down he sentencing guidelines many years before Booker. 

He led the charge on the confrontation rights of those accused of crimes. See, e.g., Melendez-Diaz v. Massachusetts (5-4 opinion where Scalia was deciding vote in favor of criminal defendant).  He was much more defense oriented than Breyer or Kagan, that's for sure.

Even on 4th Amendment issues, he was much better than the so-called liberals.  Check out his dissent in Maryland v. King (the DNA case): "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. These DNA searches have nothing to do with identification. ... If the Court’s identification theory is not wrong, there is no such thing as error. ... The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence." 

He also has written majority opinions rejecting infrared surveillanceGPS tracking of cars, and dog sniffs of our homes.  

Of course, he wasn't perfect (see gay marriage, Bush v. Gore, etc), but he was by far the most interesting Supreme Court Justice in our lifetime. RIP.

But now the fight comes.  Who can get confirmed?

Donald Trump said last night in the GOP debate that he would nominate someone like Judge William Pryor.  Judge Pryor and I had this case where we butted heads.  He's also had this recent battle with Judge Jordan.  

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

So, what do you think?  Is Judge Jordan a viable choice for President Obama?


Anonymous said...

Pryor would be the worst godawful justice ever for fairness and liberals. If the fucking gop wins the whitehouse, he is the first they will put up. Totally in the tank for "conservative" views. Would set the us back 100 years because that is how long it would take for him to serve, die, be replaced, and for the country to replace him and repair the damage.

Anonymous said...

"He led the charge on the confrontation rights of those accused of crimes" Well, not always.

Justice Scalia contended actual innocence was not sufficient to overturn a death sentence conviction, or stop an execution. Herrera v. Collins, 506 U.S. 390 (1993).

See "Scalia’s Embarrassing Question", by Lara Bazelon (writer and attorney)

"Writing for the majority, Chief Justice William Rehnquist said that Herrera’s constitutional argument had "elemental appeal" but declined to endorse it because federal courts were not supposed to "relitigate state trials." Herrera’s true remedy, Rehnquist said, rested with the president or the governor of his state, whose power to grant clemency was the "fail safe in our criminal justice system." Entertaining actual innocence claims brought years after the fact were simply too "disruptive" and unfair to the state, which needed to have things settled once and for all. Rehnquist mused that even if one assumed, hypothetically, that an innocence claim could be brought, the bar for the prisoner to clear "would necessarily be extraordinarily high."

"Concurring in judgment, Justices Antonin Scalia and Clarence Thomas would have gone even farther. Taking issue with the majority’s mere hypothetical entertainment of an innocence claim, Scalia wrote: "There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction." He concluded, "With any luck, we shall avoid ever having to face this embarrassing question again."

Anonymous said...

Rumpole just trashed Scalia. He's a jerk. Please respond and put his pompus ass in place.

Anonymous said...

@7:28 AM

My comment at 4:52 AM is not Rumpole, and I did not "trash" Justice Scalia (he did that himself while alive, thank you).

Furthermore, just to be clear about "Originalism" and why it suggests Justice Scalia was a racist. (in addition to his recent comments that blacks would do better in less rigorous schools).

Here are some of my comments as posted on the ABA Journal story "Scalia says he 'wouldn't be surprised' if SCOTUS overturns the death penalty" (Sep 24, 2015, By Debra Cassens Weiss) and this quote: "Scalia said the idea of adding freedoms to the Constitution isn’t "always good, unless you’re an anarchist."

Part 1

Just to be clear about "Originalism"

Originalism (Wikipedia) "In the context of United States constitutional interpretation, originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment..."

Okay, at the time of enactment, 1789, "We The People" factually meant "We The Wealthy White Men Slave and Property Owning People".

The U.S. Constitution of 1789 ought to be called the "Slavery Constitution" to distinguish it from the "Lincoln Constitution" of 1865 and beyond.

From the Hauenstein Center for Presidential Studies

"It comes as a shock to most Americans’ sensibilities that more than one in four U.S. presidents were slaveholder: 12 owned slaves at some point in their lives. Significantly, 8 presidents owned slaves while living in the Executive Mansion. Put another way, for 50 of the first 60 years of the new republic, the president was a slaveholder."

"Following is the number of slaves each of the 12 slaveholding presidents owned. (CAPS indicate the president owned slaves while serving as the chief executive):[1]

GEORGE WASHINGTON (between 250-350 slaves)
JAMES MADISON (more than 100)
JAMES MONROE (about 75)
ANDREW JACKSON (fewer than 200)
Martin Van Buren (one)
William Henry Harrison (eleven)
JOHN TYLER (about 70)
JAMES POLK (about 25)
ZACHARY TAYLOR (fewer than 150)
Andrew Johnson (probably eight)
Ulysses S. Grant (probably five)"

Read more, lots more

Also see, Which U.S. Presidents Owned Slaves

Also see, Presidents Who Owned Slaves

Also see, George Washington, Slave Catcher, The New York Times

Also see, The Monster of Monticello, The New York Times

Anonymous said...

@7.28 part 2

And the grand finale: Thomas Jefferson and Sally Hemings: A Brief Account Monticello.Org

Thomas Jefferson fathered six children by his slave Sally Hemings mentioned in Jefferson's records, including Beverly, Harriet, Madison, and Eston Hemings. FYI - a slave in Jefferson’s time could not decline a planter’s demand for sex. (how convenient for the planter).

"Scalia said the idea of adding freedoms to the Constitution isn’t "always good, unless you’re an anarchist." - That explains conservatives hostility toward the "Slavery Amendments" the Thirteenth Amendment (1865), the Fourteenth Amendment (1868), and the Fifteenth Amendment (1870).

Conservatives are openly hostile to the Fourteenth Amendment (civil rights, equal protection), and the Supreme Court has removed voting rights protections re the Fifteenth Amendment. Opposition to the Thirteenth Amendment is especially strong in the South, if not vocalized in public, by deed of the bench and bar, through mass incarceration of African-American men in 2015.

Perhaps I am tilting at windmills by fighting for civil might be better for a white man like me under Originalism and the "Slavery Constitution" of 1789. Imagine having a young, attractive, mixed-race "Sally Hemings" slave to cook my meals, clean my house, mend my clothes, travel with to Europe, and provide womanly comfort in place of a wife - just like Thomas Jefferson did.

Anonymous said...

Early presidents owned slaves, so Scalia is evil. Got it.

Anonymous said...

@10:09 AM "Early presidents owned slaves, so Scalia is evil. Got it."

No, unfortunately you do not understand. The problem of white privileged is one of our biggest challenges as a nation. Along with regulatory capture.

"Is Judge Jordan a viable choice for President Obama?"

Yes, based on, inter alia, his ruling in Florida Pediatric Society et al v. Liz Dudek, et al., Case No. 1:05-cv-23037-AJ, Order (Doc. 1294) Findings of Fact and Conclusions of Law (153 pages), U.S. District Court, Southern District of Florida, Order filed Dec-30-2014 by the Hon. Adalberto Jordan.

Also see, "Judge blasts Florida for depriving children of needed healthcare", Miami Herald, naked politics, by Carol Marbin Miller.

"A federal judge Wednesday declared Florida’s healthcare system for needy and disabled children to be in violation of several federal laws, handing a stunning victory to doctors and children’s advocates who have fought for almost a decade to force the state to pay pediatricians enough money to ensure impoverished children can receive adequate care."

Conservatives love children and families, until it cost money.