The Daily Parker

Politics, Weather, Photography, and the Dog

Thinking of Orlando Gibbons

When I read this, I couldn't help thinking of this:

The silver Swan, who, living, had no Note,
When Death approached, unlocked her silent throat.
Leaning her breast upon the reedy shore,
Thus sang her first and last, and sang no more:
"Farewell, all joys! O Death, come close mine eyes! 
More Geese than Swans now live, more Fools than Wise."

In other burials of Caesar, former University of Chicago law students have had some unkind things to say about how Scalia treated minorities:

Ben Streeter, now an attorney with the Federal Election Commission and a former black student of Scalia’s, told Gawker that although he in fact passed Scalia’s course, he, too, noticed preferential treatment towards white students. Streeter said the final exam in one of Scalia’s classes included an unprecedented short-answer section, with answers that weren't covered in class. Streeter suspected Scalia had mentioned the material with students who came to visit him outside of class.

“In those days, the only students who came by to visit him were in the Federalist Society group,” Streeter told Gawker. “There was not a single black member of the Federalist Society in my three years at the University of Chicago.”

Phillip Hampton, the former president of the University of Chicago’s Black Student Law Association, told Gawker that he found it strange that “every black student’s lowest grade was in Scalia’s class.” He also remembered Scalia once saying that he could “usually tell papers that were written by African Americans,” even if they had no names on them.

Scalia at least remained perfectly consistent in these attitudes throughout his tenure in the Federal Courts. Remember last December, when he said black students should stay on the short bus?

The evil that men do lives after them; the good is oft interred with their bones; so let it be with Tony. We'll be clawing back Scalia's revanchist, racist, repulsive judicial legacy for two generations—or if not, we'll be a country I don't want to live in.

Who could have predicted?

Corporations that have lost major cases at the Circuit Court level are settling rather than try their luck with a post-Scalia Supreme Court:

Quel week-end

I haven't had a moment to blog this weekend, but wow, what a major political event yesterday. Justice Scalia died suddenly on Saturday, and almost immediately Senate Republicans said they won't allow any nominee from President Obama to come to a vote. As Josh Marshall points out, this had no purpose save one:

In a typically insightful Twitter spree last night, David Frum noted that "McConnell’s precipitate statement [that he would refuse to hold a vote on any Obama appointee] is wrong not only on grounds of appropriateness & timing, but even politics ..." As Frum notes, it is entirely unnecessary for McConnell to make this stark pronouncement. He and his Senate caucus could simply decide in advance to judge any nominee beyond the pale, reject them on a party line vote and run out the clock.

Part of me thinks this too. And I agree with David that it is simply wrong. But I think I know why McConnell is right out of the gate with a principle he seemingly has no need to explicitly invoke:to normalize the behavior, to stake out the maximalist position early in order to allow it time to become accepted as a given. And more than this, it makes sense for him to do so while the White House is bound by normative rules of propriety and decency to focus on statements and gestures of mourning rather than political brinksmanship.

As I said, there's no debate here. It's just a power-play, a refusal to fulfill a straightforward constitutional duty, which no one, not the President or anyone else, has the power to prevent. Let's not pretend otherwise.

Because the Republican Party doesn't want to govern; they want to rule. And this has been the case since 1964.

How does the Supreme Court choose cases?

Crain's has a good description of why the Court denied certiorari on an assault-weapons case but chose to hear an affirmative-action case this term:

The assault-weapons case from Highland Park, Illinois, is a perfect example. The case came to the Supreme Court through the U.S. Court of Appeals for the Seventh Circuit. It raises a substantial and important issue of federal law. That would be enough for justices who think the Illinois law is unconstitutional to grant cert if they really wanted to, as Justice Clarence Thomas made clear in his dissent from the decision to deny.

At the same time, there was a perfectly ordinary bureaucratic reason for the Supreme Court to deny cert: There's no conflict among the different courts of appeal on the legal issues. Several states have similar gun laws, but so far no federal court has struck them down. In October, the Second Circuit upheld bans in New York and Connecticut. And as I noted at the time, the Supreme Court could potentially avoid the issue so long as the appeals courts don't split.

All this brings us to timing: Are the justices affected by something like the San Bernardino attack?

At the margin, there's no question that they can be affected.

Some of the column is speculation, but the author has a good read on Roberts and Kennedy.

Is Scalia a dangerous old man, or just a self-serving bigot?

That's not exactly the question Richard Posner and Eric Segall raise, but it's not that far off:

Justice Scalia ... predicted in his dissent [in Lawrence v. Texas] that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision. It has become apparent that his colleagues’ gay rights decisions have driven him to an extreme position concerning the role of the Supreme Court.

In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”

The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy.

The entire op-ed is worth a read.