Why President Obama will, thankfully, not appoint a "liberal Scalia".

[grantcart]

Please President Obama, no "liberal Scalia"

The main hobby of the media this week will be to try and gin up more controversy in the progressive community by using President Obama's nomination of a Supreme Court Nominee as a wedge to create dissension.


Already we get the allusion to "not appointing a liberal Scalia":

http://www.nytimes.com/2009/05/26/us/politics/26court.html?hp?_r=1

While there are clear political advantages to Mr. Obama if the perception is that he has avoided an ideological choice, Ms. Karlan’s absence from his list of finalists has frustrated part of the president’s base, which hungers for a full-throated, unapologetic liberal torchbearer to counter conservatives like Justice Scalia.

There are two reasons why we don't want a "liberal Scalia"


1) Scalia is an idiot.

Not because he is a conservative, he simply is not that bright of a guy. Just because far right ideologues think that is bright doesn't really mean anything. During his tenure on the court he has not established any insightful principle that invokes his intellectual leadership.

He is an "origanlist" who believes that federal power can be used beyond its original intention if you use it "wisely":

"as Hamilton would have urged you—to keep in mind that the federal government is not bad but good. The trick is to use it wisely".

Please, as a judicial philosophy that is just silly.

Moreover he is not an ideologue at all but an opportunist which was shown ing Gore v Bush

" No one familiar with the jurisprudence of Justices Rehnquist, Scalia and Thomas could possibly have imagined that they would vote to invalidate the Florida recount process on the basis of their own well-developed and oft-invoked approach to the Equal Protection Clause

And also in his opinion of 'Stare decisis'

That Scalia would uphold some and overrule other precedents that contradict his judicial philosophy is an apparent inconsistency

2) Scalia is not intellectually influential.

More to the point Scalia doesn't have much impact on majority opinions. The next Supreme Court Nominee should be someone who is able to have an impact on the court to secure majority opinons. Having a 'Liberal Scalia' or more to the point a reincarnated Justice Douglas would not be helpful.

Justice Douglas did not get along well with the other Justices, even liberal Justices found him irritating. He did set a record for the number of dissenting opinions. We don't need another Great Dissenter, we need majority opinions.



Until we have 5 firm votes on the Supreme Court we need justices who are not only progressive but also able to influence other people to form progressive majorities. We don't need 'full throated' dissents. When we have 5 firm votes then I would love to see another firebrand like Justice Douglas, until then appoint someone with the persuasive powers of Chief Justice Warren.

In any case we don't want a 'liberal Scalia', as it gives him credit for being somebody whose intellect we admire. Beyond that the media's interest is not in what we think or believe, or the agenda we want to achieve, but in creating internal disagreements on meaningless tactical moves.



Quotes taken from Scalia's Wikipedia page:http://en.wikipedia.org/wiki/Antonin_Scalia

[Old Hank]

1. It's impossible to label a judge before he/she gets to work

In the past, so-called "conservative" judges have turned liberals, surprising everybody, and vice-versa. Judges are unpredictable at times.

And look at Roberts. Judging by the number of Democratic Senators who voted for his confirmation, I doubt they had an idea of how Scalia-like he was. Roberts is Scalia's clone. And so is Clarence Thomas.

[grantcart]

4. good point

[chimpymustgo]

8. They knew what they were getting. They just punked out and his behind their mama's skirts.

And they're lying about it now. You and I and everybody HERE knew Roberts was a reactionary right-winger. And that Saddam didn't have WMD. How'd we get SOOOOO smart??

[Sebastian Doyle]

2. And here's why that argument is crap

7 of the current 9 justices are appointees of the Bush Crime Family. It's completely by accident that Stevens and Souter didn't turn out to be flaming right wingers, but they certainly were not chosen as "liberals".

Since we don't have much chance of having the Kucinich NonCrime Family dominating the political scene for the next 60 years (if such an organziation existed which it doesn't) then we can't depend on "someday" to eventually have a decent court by appointing center right DLC judicial equivalents of Harry Reid.

Obama is likely to get three appointments to the Supreme Court. He should make them count.

[grantcart]

3. Thank you for your thoughtful comment.

[Uzybone]

5. Well said, I don't get why some want us to be mirror images

Its not just the ideas of conservatives that are wrong, its their methods too. I reject them all.

[grantcart]

6. Scalia's track record speaks volumes

He is an outsider of the majority and has little influence.

[HamdenRice]

7. I disagree. Scalia is quite bright, if almost always wrong.

Thomas, Alito, and Roberts are not bright and not influential.

Scalia is a very, very persuasive opinion writer and has had an impact. His early opinions were scarily logical. Fortunately, the trend has been reversed politically and no more Scalia clones will be appointed at least during the next 4 years.

[grantcart]

9. Being logical is not the same as having a sharp intellect

But I am willing to be persuaded.


What intellectual contribution to the idea of legal reasoning has he brought that has gained any resonance?


Early on he seemed to be creating a new way of looking at 'Originalism' but his overly formalistic view of the constitution hasn't won many converts, and is not spawning a 'Scalia school'. Moreover whatever intellectual credentials he had were substantially undermined, and from a historical point of view probably permanently so, by his highly opportunistic judicial philosophy flip flop on the equal protection clause use in Bush versus Gore.

[HamdenRice]

10. Scalia has been extremely influential in property rights

He wrote the opinion in Lucas v. South Carolina Coastal Council, one of the most important property cases in decades, and his approach now pretty much governs and limits how local and state government can regulate property for environmental, zoning and economic development purposes.

He reasoning, which I think was wrong, was nevertheless very rigorous and ultimately influential. He wrote the majority opinion, moreover, so Scalia's approach to extending vast new economic protections to the rights of property owners -- essentially to do whatever they like with their property regardless of environmental impact, unless compensated by the government -- is the law of the land. There is a terrible sub theme of reasoning in the opinion that says that recreational use of environmentally sensitive areas -- in that case, beach front -- has no value.

As a theoretician, his approach has unfortunately become the dominant one in property theory.