The Case Against Scalia.

In the film The English Patient a Nazi interrogator muses over a question he thinks has great moral and metaphysical import. In the scene he and his henchmen are threatening to strip a detainees’ fingernails when the Nazi commander has a brainstorm: are thumbs fingers?

Such obsessively abstract logic chopping can engender a mind-numbing moral obtuseness. That’s the feeling I had as I watched “Justice” Scalia being interviewed on 60 Minutes Lesley Stahl. The subject of torture came up -- as did Bush vs. Gore -- but by Scalia’s reasoning torture didn’t fit in the punishment category. Presumably, torture is used on detainees to get information. Therefore, the Constitution’s ban on “cruel and unusual punishment” doesn’t apply since no one is using waterboarding, thumbscrews, or the wrack to punish the aforementioned detainees. I’m glad “Justice” Scalia cleared that little moral conundrum up for me!

Scalia was equally disingenuous on the subject of Bush vs. Gore. He makes no apology for that ignominious decision, a verdict that is in the process of tainting his legacy and discrediting his judicial philosophy. He argues, implausibly, that the outcome would have been the same whether the Court intervened or not. Indeed, he has the temerity to blame Al Gore for getting the courts involved in the first place. Needless to say, Scalia blithely ignores inconvenient facts: namely, that tens of thousands of machine unreadable ballots were never tabulated, that Bush ally Katherine Harris misused her office as Secretary of State to thwart a recount, or that the chief legal rationale trumpeted by the Bush campaign (that examining the uncounted ballots would be a violation of the Equal Protection Clause) was right out of Alice in Wonderland.

The Bush administration is universally recognized as a catastrophe. But all the hallmarks of their opportunistic mendacity were on display during the election fiasco that led to current debacle. The sophistic legal reasoning, the fear mongering, and the pandering to the lowest common denominator all had a trial run as the Bush’s campaign took their case to what proved to be a kangaroo court.

“Justice” Scalia’s anxiety was palpable as Stahl queried him. He clearly wanted to change the subject. Bush vs. Gore, it should be clear, will not stand as a paradigmatic case that illustrates the values and principles that exemplify the highest ideals of the United States. Rather, it will mark a crucial moment where the ideal of a fair and impartial judiciary resorted to brazen political expediency. It is only poetic justice that those who lent their seal of approval to Bush’s dubious political ascension should be discredited the most by his disastrously incompetent reign. Justice Stevens was on the right side of Bush vs. Gore when he wrote in dissent that the biggest loser in all this would be the American people and the rule of law. “Justice” Scalia is an oxymoron.

Sphere: Related Content