Tony “One Finger” Scalia

Bird or not, Scalia creates another flap

© Bryan Zepp Jamieson
3/28/06
http://www.zeppscommentaries.com/VRWC/onefinger.htm

It sounded like one of those moments Jon Stewart lives for. Supreme Court Justice Antonin Scalia was at the Cathedral of the Holy Cross, and a reporter had asked him how he would respond to those who questioned his impartiality when it comes to issues separating church and state. "You know what I say to those people?" Scalia replied, making the "obscene gesture, flicking his hand under his chin," the Herald reported. He explained, "That's Sicilian."

Most likely, the “obscene gesture” was the fingertips out from the chin, which can, depending on context, signify amusement, irritation, or the exact same meaning that the American one-finger gesture means, or the British two-finger gesture. Vaffanculo. A pretty Italian phrase that’s a lot nastier than it sounds.

In any event, it made Scaly a fare una figura di merda (Phrases compliments of Insult Mongers, a wonderful website that allows you to cuss and insult in 80 different languages).

Since one expects a combination of sanctimony and tawdry personal behavior from Republicans, the story wasn’t particularly shocking. It was fun to use to tease any right winger silly enough to get sanctimonious about the story, of course, and it focused public attention on the Court Jester once again.

More important was that once again, he mouthed off about a case pending before the Supreme Court: that of the rights of detainees being held in American gulags overseas. He replied, “"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts [...] If he [presumably a hypothetical detainee] was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy.”

Given that he’s going to be hearing a case that revolves around the rights of detainees in the fairly near future, it’s grounds for recusal. This will be the third time he’s run his mouth on a situation the court was planning to examine, and I even wrote a piece on one of them, “The Scalias of Justice.” That was the Newdow case, wherein he said that anyone who didn’t want to include God in the pledge of allegiance deserved to be spanked, and he did eventually recuse himself. The other case revolved around the vice-president’s alleged privilege of keeping policy meetings with lobbyists secret, and he turned out to have gone duck hunting with Cheney. He refused to recuse himself, and Cheney didn’t shoot him, which sounds a bit like a quid pro quo in the lunatic right wing America. Political humorist Will Durst wrote on that one, “In a 21-page ‘nyah-nyah, nyah-nyah-nyah’ memorandum responding to his critics, Justice Scalia refused to recuse, citing a laundry list of spurious precedents. But all the legal language mainly boils down to: he doesn't want to, he doesn't have to, so he won't -- and if we don't like it, we can all just go poop in our pockets.”

This instance is immediately important, since today the SC heard oral arguments on whether it had jurisdiction to even judge the legality of the kangaroo courts set up under the Detainee Treatment Act, and it is fairly evident that the Court was not amused at the admin’s attempt to strip it of the right to hear such cases. So Scalia could be the deciding vote on whether the concentration camp inmates in the American gulags have rights or not.

Hard to imagine we’re even HAVING this discussion in 21st century America, isn’t it?

It’s easy to dismiss Scalia as a corrupt buffoon, the American answer to Mussolini, There’s a large section of the legal community who feels he should automatically recuse himself in any church versus state case since he has openly declared that he regards biblical law as being the basis of his judicial philosophy. A wonderful quote a friend passed along to me the other day suggests itself here: Justice Scalia, you put your hand on the bible and swore to uphold the Constitution. You did not put your hand on the Constitution and swear to uphold the bible.

But the man is intelligent. I went looking for some quotes of his for use in this essay, and found some that back the stereotype of Scalia as being a kind of a Tony Soprano who knows Latin, and others that showed a capable mind at work.

Examples:

“Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution.”

“If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”

“There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”

“We are unwilling to send police and judges into a new thicket of 4th Amendment law, to seek a creature of uncertain description that is neither a plain-view inspection nor yet a ‘full-blown search.’”

`“What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean?” [Examples from Brain Quotes  and Think Exist]

This bodes well if he bothers to be honest and consistent. Obviously, there are no guarantees on either.

But he’s still a buffoon. His most notorious quotes came from his role in undermining the 2000 election, when he ruled that a full recount of the vote in Florida would cause “irreparable harm” to the Bush campaign. At that time, he actually wrote, “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

His answer? Don’t count at all, and rule on that.

He also once said in a ruling, “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

And he wrote in a dissent on a capital case, ““If one is to say as the court does today that ALL executions of the mentally retarded are so morally repugnant as to violate our national standards of decency, surely the consensus it points to must be one that has set its righteous face against ALL such executions.” That sounds almost rational, until you realize that he was arguing FOR the execution of the mentally retarded!