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The Last Principled Judge In America (TM) Speaks

[ 52 ] July 19, 2012 |

And his defenses of Bush v. Gore keep getting worse.

…and as is correctly noted in comments, pace Scalia it was Bush who filed the first lawsuit.

much more from Pierce.

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  1. Epicurus says:

    I believe the word you were seeking in the title is “least,” not “last.” You’re welcome.

  2. Davis X. Machina says:

    Hey, his team is winning.

    It’s a fairly popular jurisprudential theory these days, and one with ancient roots.

  3. Njorl says:

    How can you call this disclosure-supporting leftist “principled”?

  4. Usually just lurk says:

    I think we can once and for all dismiss the notion that Scalia’s thought processes are anything but garden variety wingnut. Oh, he talks a good game, but look at all the zombie lies he parrots:

    It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question which—when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts.

    Yes, Bush v. Gore was brought into the courts by Al Gore, right. Oh, maybe he means the initial recount request by Gore, which is common. But the court fights were mostly launched by Bush to stop the recounts.

    And the nonsense about Nixon. While Nixon conceded publically he submitted legal challenges in dozens of states in 1960. And he would have had to win challenges in two states – Texas and Illinois – to overturn the result, not just in Chicago.

    The press did extensive research into what would have happened if what Al Gore wanted done had been done county by county, and he would have lost anyway.

    Yes, a recount of the entire state would have given the state to Gore by any measure, but a recount of just those 4 counties would probably have given the state to Bush by a tiny margin. Gore was required by law to challenge only counties where he had evidence of substantial vote count differences. The Florida Supreme Court, correctly interpreting the Florida Constitution’s directive about the importance of the vote, extended the recount statewide.

    It was a mess, yes, caused in large part by the GOP SoS office. But no one can dispute that 10s of thousands more people went to the polls in Florida in 2000 intending to vote for Gore than intending to vote for Bush.

    • Glenn says:

      Yeah, I spit out my teeth when I read that Al Gore had brought the case to the Court. Both petitions for cert were filed by Bush. I’d love to see this hack (by which I mean, Scalia) go onto a show and get interviewed by someone who knows enough to call him on his crap.

      • firefall says:

        He’s bright enough to avoid that, I think – unless his oversized ego swells far enough to occlude those brain cells (surely a matter of time)

    • Eric says:

      You’re exactly right about Nixon. It’s completely ignorant to say that Republicans didn’t try to litigate the results of the 1960 election. Republican legal challenges lasted halfway through 1961.

      I’d add that investigation turned up plenty of shenanigans in heavy Republican areas that favored Nixon, too.

      • TT says:

        Nixon did his usual two-step following his loss to JFK, i.e. my allies demand that I contest what they see as a stolen election, but my patriotism and sense of ethics prohibit me from casting aspersions on the alleged misdeeds my opponent may have committee. (While in private he coordinated, directed, and/or encouraged GOP legal efforts in 11 states to contest Kennedy’s victory.)

        http://www.slate.com/articles/news_and_politics/history_lesson/2000/10/was_nixon_robbed.single.html

        • H-Bob says:

          Also, on election night, it appeared that Nixon had also lost both California and Hawaii — those results were reversed due to a subsequent recounts that were completed after the deadline for challenging the Illinois results. Nixon’s apparent loss of California made Illinois moot, so that’s probably why he did not officialy challenge the Illinois results.

          Another fact that is overlooked is that Gore actually won Florida on election night but the overseas ballots that came in after election day switched Florida to Bush (i.e., his margin of victory on the “late” ballots was greater than his official margin of victory). However, the media always presented the situation as Gore being behind and scrambling for some way to take the victory away from Bush. If the situation had been presented accurately (Gore won on election night and the “late” overseas ballots switched the result to Bush) then the need for an accurate recount would have been obvious.

          I also was surprised by the Court’s holding that the Florida Supreme Court’s interpretation of Florida law was not binding.

    • Murc says:

      It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question which—when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts.

      Even if this were true, which it is not, wouldn’t this simply mean that Nixon was dumb?

      Scalia is articulating a principle that says the courts have no proper role in adjudicating claims of election chicanery. And that’s mind-boggling. It’s a license to steal elections.

    • Furious Jorge says:

      Yes, a recount of the entire state would have given the state to Gore by any measure

      This is actually the opposite of what I remember reading at the time.

      • Steven desJardins says:

        More precisely: any recount of the entire state, using a consistent standard, which counts all ballots rejected as “overvotes” in which the voter both marked a candidate and wrote that candidate’s name in as a write-in, would have given the state to Gore.

        There are numerous scenarios using inconsistent standards, partial recounts, or rejection of overvotes which clearly ought to have been counted under state law, which would have given Bush the win. The propaganda machine heavily promoted those scenarios.

        • wengler says:

          I just saw the part of the interview referenced and here Scalia is being very narrow. I remember this very clearly because the rightwing Chicago Tribune ran a large headline the day it cam out that “Bush would’ve won the recount!!111”

          The point was that since the Florida Supreme Court only included the counting of possible ‘undervotes’ that under that standard Bush would’ve won. If it would’ve been clear intent of the voter, Gore would’ve won and a lot of dead people would still be alive.

  5. rea says:

    What kind of idiot thinks Bush v Gore was started by Gore? If Gore had started it, it would be Gore v Bush.

  6. Kurzleg says:

    When I read that excerpt from the Piers Morgan interview I heard Emeril Lagasse’s voice for Scalia’s responses. Which may be indicative of my subconscious opinions of the styles of both.

  7. Nate W. says:

    “…and as is correctly noted in comments, pace Scalia it was Bush who filed the first lawsuit.”

    Pace would seem more appropriate if Scalia were arguing in good faith and was worthy of respect. I think the word you want here is contra.

  8. Joe says:

    Gore challenged the count but Bush ultimately brought the case to the SC, twice (see also, Bush v. Palm Beach County Canvassing Board). Bush also lost repeatedly below, including in the fairly conservative federal circuit at issue.

    We simply don’t know who would have won the count since we don’t know what ultimate counting system would be used though the judge in charge said he was leaning toward one that would have benefited Gore. It is reasonable to say Gore could have won. Saying Bush clearly would have is hackish.

    Perhaps the most stupid thing he said though was that the Constitution doesn’t ‘say anything’ about torture. The 5A self-incrimination provision is there largely to address torture. Yes, this requires a “criminal prosecution,” but I think the dissent was right in the Chavez case on that front (a golden moment for Kennedy btw). Still, the Constitution there clearly says something about torture.

    I think torture can be an “unreasonable” seizure and it is an “undue” deprivation of liberty in custody, but even w/o that, the first point is crystal clear. Scalia goes beyond wrong though and into hack & basically earns the resulting “he’s just a hack” comments.

    I don’t think he is “just a” hack. He is over and over again a hack, pretty dickish at it at times. His false vanity about how principled he is (a standard conservative trope) is annoying too.

    • Boudleaux says:

      “Cruel and unusual punishment” must be some kind of surplusage?

      Given that this is the serious jurist who cited a hysterical, imaginary TV show in his deliberations on the matter . . .

      • rea says:

        Well, “cruel and unusual punishment” would only apply if the victim was convicted of a crime and sentenced to be tortured. Torturing someone for information, or for the hell of it, isn’t “punishment.”

        There is, however, such a thing as substantive due process, even if Scalia doen’t believe in it.

        • Timb says:

          Do you really believe that distinction? Talk about semantics….they can torture you unless they prove you did something wrong, then they cannot, because the criminal is protected and the “un-convicted” is not

          • Joe says:

            they can torture you unless they prove you did something wrong, then they cannot

            Where does it say you ‘can’ torture?

            The substantive due process reference is to address torture outside of punishment.

            • timb says:

              It’s the distinction Scalia makes….that the 8th Amendment forbids torture as punishment, but this wasn’t punishment.

              It’s irritating that he pretends to find prohibitions from torture in statute (listen to the interview) and not the Constitution.

              • Joe says:

                that the 8th Amendment forbids torture as punishment, but this wasn’t punishment

                I thought that Scalia said the Constitution does not “say anything” about torture, so this might be too generous.

                But, yes, he might say the 8A alone has an explicit bar, specifically citing a concern for limits of punishment as in of the sort judges sentence. Wrong they might be, but the general public seem to think something like that at times.

                It’s irritating that he pretends to find prohibitions from torture in statute (listen to the interview) and not the Constitution.

                Many laws stop the government from doing something w/o being required by the Constitution.

                • Joe says:

                  [A sizable amount of the public seems to think torture for information purposes is acceptable w/o them all thinking it would be okay for punishment of a crime, where it might be seen as not as defensible as “necessary.”

                  It is not irrational to think a Constitution would recognize this distinction putting aside I don’t think ours did.]

        • Torturing someone for information…isn’t “punishment.”

          Sure it is. You punish someone for not giving you answers, or the right answers.

      • Joe says:

        Torturous punishments surely was a concern so on that ground his comments were overboard but I agree with rea below on use of torture in a non-penal way, which is the basic point here.

    • Hogan says:

      The Constitution doesn’t say anything about slavery, either, since it doesn’t have the word “slavery” in it.

  9. Sherm says:

    I just took a quick look at the decision on westlaw, and on further review, I think Scalia was technically correct in that the infamous Bush v. Gore decision which he was discussing in the interview came to the Supreme Court on a writ of certiorari filed by Bush from the case of Gore v. Harris, where Gore was the plaintiff.

    However, and as mentioned above, I believe that Bush brought the first lawsuit which was Bush v. Palm Beach County.

  10. Anderson says:

    Despite all of his previous discussion of “textualism” and “originalism,” Scalia makes no attempt to defend the holding that using different vote-counting methods in different counties is unconstitutional in this case—but not in any other case

    Agreed, but wasn’t this the part that got 7 justices on board?

    • Scott Lemieux says:

      Jesus Christ, not this shit again. Where did Breyer and Souter say that an equal protection holding would not be applicable either in future cases or in devising a remedy to this case? A decision decided on an actual equal protection principle would be a completely different question.

      • Anderson says:

        Oh, sorry, missed the “in this case but not in any other case.” They did say that different methods in different counties was unacceptable, which by itself I have problems with.

  11. Steve H says:

    I am both saddened and delighted by Scalia’s recent public flaming out.

  12. Joe says:

    You punish someone for not giving you answers, or the right answers.

    The word “punishment” is used for “to protect those convicted of crimes” though I think it proper to apply it to cases like discipline used in schools in functionally the same ways.

    The way used here is I guess credible, but it’s at least a step beyond even that. I think is gets to be a bit too open-ended & general substantive due process or perhaps the 4A is a better approach instead of stretching “punishment” past its common sense understandings to mean “punishing” someone by government conduct for any number of non-penal reasons.

  13. rkd says:

    As my grandfather would say, What a cidrule!

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