Justice Scalia statement about Gitmo

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Wed Mar 29 09:42:28 PST 2006


We know a lot about what sitting justices think. They often make very clear
in their opinions that they have a particular point of view on a topic
broader than the specific issue that must be decided (because their view on
the broader topic leads to a particular result on the specific issue in the
case). They even write books to tell us what they think. Even nominees for
the Supreme Court usually have a track record. So it isn't necessarily a
problem that we know where a justice or potential justice stands.
 
It is different when a senator is asking a question during confirmation.
Then, it can appear that a commitment is being sought, perhaps in exchange
for a yes vote on confirmation.
 
Mark S. Scarberry
Pepperdine University School of Law
 
 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of rjlipkin at aol.com
Sent: Wednesday, March 29, 2006 8:01 AM
To: bobsheridan at earthlink.net; wasb at albany.edu
Cc: SLevinson at law.utexas.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Justice Scalia statement about Gitmo


 Bob Sheridan writes:
 
"Constitutional law is not about "intellectual humility." It's about what we
believe."
 
    I think this misses the point of my post. First, I never wrote that
constitutional law was "about" intellectual humility. My point was that
intellectual humility, in my view, should be an attribute of any serious
intellectual inquiry. That doesn't preclude confidence in one's position; it
simply involves the recognition that one's position is only bolstered by
taking other people's position seriously and with the respect due members of
the appropriate intellectual community.  That's the general point.  Second,
and more important with regard to this List's purposes, unelected justices
should, again i! n my view, practice intellectual humility with greater
circumspection and restraint than those engaged in intellectual inquiry and
argument generally, especially more so than legislators, though they too, in
my view, should be bound by the constraint of intellectual humility. 
 
     Approaches to controversy might differ in bar rooms, ball fields, and
political demonstrations, and I've been involved in such controversy in all
three venues. It is in non sequitur, however, to assume that sitting Supreme
Court justices in public presentations should fall into any of these
categories.
 
     Finally, I'm not sure there are many examples of when it is appropriate
for a judge to recuse himself more than this one. Justice Scalia has already
stated his opinion of the issues involved in strident terms. Chief justice
Roberts and Justice Alito, inter alia, have made it clear in their
confirmation hearings that even revealing a general sense--or provisional
inclination--about issues that might come before the Court is completely
inappropriate. It's not that this issue might come before the! court, it is
before the Court. If I recall correctly, Justice Scalia embraced, in his
confirmation hearing, the same proinciple.  Well if this principle applies
when the democratic branches are deciding--virtually once and
forever--whether a particular nominee warrants confirmation, it's difficult
to see why it would not apply with more force throughout the career of the
justice. 
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
 
 
-----Original Message-----
From: Bob Sheridan <bobsheridan at earthlink.net>
To: Stephen L. Wasby <wasb at albany.edu>
Cc: RJLipkin at aol.com; SLevinson at law.utexas.edu; mark.kende at drake.edu;
CONLAWPROF at lists.ucla.edu
Sent: Wed, 29 Mar 2006 07:26:00 -0800
Subject: Re: Justice Scalia statement about Gitmo


Constitutional law is not about "intellectual humility." It's about what we
believe. The STUDY of constitutional law, on the other hand, does require
taking account of competing views. Here, intellectual humility may be
helpful in avoiding quarrels en route to gaining understanding. But in the
fighting world where the dogs in the fight are the competing views,
intellectual humility is more apt to be a pose awaiting the chance to make
the rapier's thrust. 
 
I don't see grounds for Scalia recusing himself for his remarks. He go! t
the job as a top legal policy-maker for the nation because he had a
viewpoint productive of just such views. While we may expect ordinary judges
to recuse themselves if they appear to commit themselves on issues in
advance of trial, do we really expect the same of SC judges? Or are we
simply getting what we know what was in store? 
 
As for Scalia's mode of expression: pugnacious, argumentative, in-your-face,
etc., that IS what con-law comes down to in the final analysis when it is
actually being done, that is, argued, as opposed to being studied in
academia. The problem for the academics is to take such statements, and
those of the counter-protesters, and analyze them in tellectually to see
what's there. 
 
Scalia is a fighter for his views. He's not a hand-wringer, on the one hand,
on the other hand, etc. Of course he's going to express himself in the
punchiest way possible. This is a technique of debate, used to make a point,
the point being that any competing point is laughable. To the rest of the
country, the Abolitionists were laughing-stocks, until the midst of the
Civil War. Something happened. Suddenly they were great moral leaders. Jim
Crow. Blacks were relegated...and laughed at. Equal protection later began
to be taken seriously. A constitutional change had take! n place not only on
paper, but in the hearts of many people. The manner of expression changed. 
 
Conlaw is not always fought out by the Marquis of Queensbury rules. 
 
rs 
sfls 
 
Stephen L. Wasby wrote: 
> I find Bobby's statement to be a good, strong one. Scal ia's tone >
off-the-bench is not particularly different from some of his "shots" 
> in his opinions in cases before the Supreme Court. At one "point in >
time," "collegial" --in "collegial court"-- meant an ability to 
> entertain and seriously consider others' arguments; now, in some > courts,
or at least for some judges, it seems to mean little 
> more than a technical "multi-member court." 
> Steve Wasby 
> 
> ----- Original Message ----- 
> *From:* RJ <mailto:RJLipk! in%40aol.com> Lipkin at aol.com <
<mailto:RJLipkin%40aol.com> mailto:RJLipkin at aol.com> 
> *To:* SLevinson at law.utexas.edu <mailto:SLevinson%40law.utexas.edu>  <
<mailto:SLevinson%40law.utexas.edu> mailto:SLevinson at law.utexas.edu> ; 
> mark.kende at drake.edu <mailto:mark.kende%40drake.edu>  <
<mailto:mark.kende%40drake.edu> mailto:mark.kende at drake.edu> ; 
> CONLAWPROF! @lists.ucla.edu <mailto:CONLAWPROF%40lists.ucla.edu>  <
<mailto:CONLAWPROF%40lists.ucla.edu> < SPAN class=correction
id="">mailto:CONLAWPROF at lists.ucla.edu> 
> *Sent:* Sunday, March 26, 2006 10:17 PM 
> *Subject:* Re: Justice Scalia statement about Gitmo 
> 
> What I find overwhelmingly infuriating about Justice Scalia's 
> remarks is his apparent lack of anything resembling an ability for 
> self-criticism. "Get over it," "it's crazy," "not a very hard 
> question," "there was no way we could have turned that case down" 
> and "nobody has ever! thought otherwise" just for starters. His 
> apparent incapacity to try to see anything of value in the other 
> guy's point of view is maddening. No, it is apparently 
> inconceivable to him that the Supreme Court was politically 
> motivated in /Bush v. Gore/. And his exhibition of an entrenched, 
> in my terms, "unimodal" perspective that makes his solipsism not 
> only possible but a reality. > > To give life tenure to people with
intellects such as this 
> threatens, in my view, anything resembling deliberative discourse, 
> and in any event is, again in my view, madness. 
> > Bobby 
> > Robert Justin Lipkin 
> Professor of Law 
> Widener University School of Law 
> Delaware 
> 
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