Odd analogies

[Paul Finkelman]

Please Eugene, let's not get over emotional about this.   No one is
suggesting that Scalia is a great murder (although his death penalty
opinions might make him at least partially responsible to the death
"actually innocent" person) or that he is advocating a Gulag.  My piont
is simply that Stalin understood the nature of "counting" or "not
counting votes," that the Scalia and company have learned that lesson
quite well.  The  Court managed to delay the count in Bush v Gore (I),
prevent the count from going forward in the stay, and now in II, turn
around and say, "well, a count might go forward, but you are out of
time."  Had the court been at all interested in getting a count, the
court could have told the Fl. Sup. Ct. what to do in B v. G (I) or
simply let the count continue and then say whether it had to be redone.
But, it is quite clear the court had no interest in getting a fair
count.  Thousands of votes in Florida were not counted.  The majority
prevented that Count from taking place in order to guarantee the victory
of the candidate of choice for the Court majority.

We can now all write law review articles trying to understand the theory
or logic of the result, and try to teach it, but the reality is, the
theory is quite simple:  the court understood that if you don't let your
opponent's votes count, then your guy wins.  That is pure Stalin.  That
does not imply that Scalia and the majority are murderers, only that
they are anti-democratic (with a SMALL "d") and thoroughly cynical in
their role as jurists.

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu


Volokh, Eugene" wrote:

>
>
>                 While I wasn't entirely persuaded by Howard Gillman's
> critique of the Court's analogy to NAACP v. Alabama, I do agree that
> one ought to be cautious in drawing analogies like that.  Even if the
> cases are similar in some formal respects, when the background
> circumstances underlying the cases are different enough, the analogy
> does risk appearing "tone-deaf" to the reader.
>
>                 I wonder, then, what people who sympathize with
> Howard's criticism think of the analogy of Justice Scalia to . . .
> Joseph Stalin.  Shouldn't analogies to one of the three great mass
> murderers of the century be just a *bit* more hesitantly drawn?
>
>                 Eugene
>
>
> Paul Finkelman writes:
>
>      The only hard thing for us is that some of us will have to teach
>      this stuff with a
>      straight face, and try to figure out a "rule" or a "reason."   I
>      am just thankful
>      that the semester is over, and I will not teach con law this
>      spring, so I do not
>      have to try to convince students that we do have a rule of law
>      and even a rule of
>      reason.   This case reminds me of what Uncle Joe Stalin said
>      about elections:  it
>      doesn't matter who gets to vote, it only matters who gets to
>      count the votes;
>      this is something that Uncle Nino and Cousin Clarence clearly
>      understand.
>
>



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