Scalia Is the Right Wing's Version of the West Wing's Justice Roy Ashland

Fictional Chief Justice of the Supreme Court Roy Ashland

In season five of The West Wing, the great Irish actor Milo O'Shea played aging Supreme Court Justice Roy Ashland, whose mental deterioration had the White House worried when he wrote an opinion in trochiac tetrometer. I'd have loved to see the reaction in the west wing to Justice Antonin Scalia's interview in New York Magazine today.

"...power tends to corrupt."

Lack of self-awareness can be a sign denial (in his case, projection), or some worse problem, like anosognosia.

"If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ¬democracy—that will be the source of tyranny."

I don't disagree, but I wonder if he thinks the logic applies to his branch enlisting its jealousy against the legislature? When he says one thing, then does another, the hypocrisy appears to be politically motivated, and he just sounds like the Bullshitter he is. But perhaps his logical inconsistencies and lack of self awareness have really been flare ups from an undiagnosed condition?

Here he is on the Defense of Marriage Act, in his dissent in US v Windsor:

"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

This is precisely the opposite of his opinion (joining Roberts) in Shelby County, Alabama v Holder, where he joined in striking down Section 4 of the Voting Rights Act, which had been reauthorized by a near-unanimous Congress.

Of course, Jennifer Senior doesn't follow up with any questions about this glaring inconsistency in the long interview. Damn liberal media being so mean to him and all... can't be too tough or conservatives won't agree to interviews (looking at you, Jon Stewart, Bill Maher, et al)...

This guy is such a stouthearted originalist that "cruel and unusual" punishment does not include flogging, so of course being put in jail for butt sex is fine.

"...if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ¬CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ¬CONSTITUTIONAL! Whack! ¬STUPID BUT ¬CONSTITUTIONAL … [Laughs.] And then somebody sent me one."

Someone please ask Justin A. Frank to write Scalia on the Couch next. I'd like to know more about the proximity of his affinity for flogging and his pounding of his fist to mimic the stamping motion.

Just how stout is this stouthearted originalist?

What about sex discrimination? Do you think the Fourteenth Amendment covers it? 

Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.

He tries to weasel a little as to why he's given a different answer on that before. Fact is, the people who passed the 14th didn't have women in mind. The Supremes themselves determined that the 14th did not apply to women in Minor v. Happersett (more accurately, that decision claimed voting was not a constitutional right). It took the 19th Amendment to overturn that "originalist" decision. Go read the whole article to watch him contort himself into defending unequal treatment of women as NOT discrimination, like prohibiting women from combat. I'd have loved to hear him expand on that list, but alas, onward we must go, because Liberal Media!

"You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it."

We all know what this gesture means
here in the US, Antonin.

Scalia thinks ladies saying fuck is more coarsening to society than his words on the Voting Rights Act:

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

My Italian wife says "Fuck you, Tony."

Here's Justice Scalia's contribution to a less coarse society:

The one thing I did think, as he said those somewhat welcoming things to gay men and women, is, Huh, this really does show how much our world has changed. I was wondering what kind of personal exposure you might have had to this sea change. 

I have friends that I know, or very much suspect, are homosexual. Everybody does.

Have any of them come out to you?

No. No. Not that I know of.

Has your personal attitude softened some?

Toward what?

Homosexuality. 

I don’t think I’ve softened. I don’t know what you mean by softened.

If you talk to your grandchildren, they have different opinions from you about this, right?

I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all.

Evasive much? But note that Scalia's son also doesn't exactly hate homosexuals, he just denies they exist.

Maybe Scalia and his son do differ, and Scalia believes homosexuals exist. His comment ("I have friends that I know, or very much suspect, are homosexual") seems to suggest that he thinks they exist. So there's a big difference with his son.

The obvious point is that when Scalia says he doesn't hate homosexuals, it seems to not fit with his desire to declare sodomy laws constitutional (Lawrence v. Texas). It does not fit with his desire to allow states to deny gay couples marriage rights. But even if we don't look at his record, we can just see what he's said about homosexuals.

He joked about sodomy laws being like laws about flag pole sitting. He suggested that laws banning homosexual sex were like laws against murder. He suggested they were like laws banning child porn, incest, and bestiality. But he doesn't hate you, gay people, so relax. It's not like he thinks you're the work of the devil.

Can we talk about your drafting process—

[Leans in, stage-whispers.] I even believe in the Devil.

You do?

Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

Every Catholic believes this? There’s a wide variety of Catholics out there …

If you are faithful to Catholic dogma, that is certainly a large part of it.

Have you seen evidence of the Devil lately?

You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

No.

It’s because he’s smart.

Smart like a homosexual fox. I wonder what Scalia would think of the proposition that the Devil is so smart he actually wrote the Bible? Maybe Satan has just gotten lazy and prefers to watch cable.

I watched one episode of—what is it? Duck Dynasty?

What?

I don’t watch it regularly, but I’m a hunter. I use duck calls …

We know.

"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said in response to a question from the audience of about 600 people. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."

Later he says his statement refusing to recuse himself from Cheney's case was his most "heroic" opinion. Gotta get in a shout out to his partner in crime. Maybe Scalia would feel differently about hunting, and his old hunting partner, had Scalia gone on a different hunting trip with Cheney.

Scalia's tell that he has a good hand. (Reuters/Yuri Gripas)

Of course, it's next to impossible to interview what might be the biggest bullshitter in the country without accidentally exposing some bullshit.

Here’s another thing I find unexpected about you: that you play poker. Do not take this the wrong way, but you strike me as the kind of person who would be a horrible poker player.

Shame on you! I’m a damn good poker player.

But aren’t you the kind of guy who always puts all of his cards on the table? I feel like you would be the worst bluffer ever.

You can talk to the people in my poker set.

Do you have a tell?

What?

A tell.

What’s a tell?

What’s a tell? Are you joking? 

No.

Scalia with a bad hand. Getty Images, via.

Hey, Antonin, how do I get in your poker set? I regret that I couldn't have played you before you learned what a "tell" is, but I'm thinking even knowing about such a thing won't stop you from having one.

And, isn't gambling in DC, Virginia, and Maryland illegal? Can a Supreme Court justice be indicted? If he's convicted, can we replace him? Or do we have to watch him deteriorate in prison, while he decides cases from his cell?

But how will you know when it’s time to go? It doesn’t seem like you have anything to worry about at the moment, but it’s interesting to hear you even flick at that.

Oh, I’ll know when I’m not hitting on all eight cylinders.

Are you sure? All these people in ¬public life—athletes in particular—never have a clue.

No, I’ll know.

Hopefully, he'll read this interview. But, even if he was aware that he's losing it, he most likely won't resign if there's a Democrat in the White House. I'm sure he figures even if he is losing it, he'd still be a better justice than his replacement.

My proof for this? Just witness the level of narcissism already on display here in his praise for his heroic lone dissent in Morrison v. Olson, which declared the Independent Counsel Act constitutional.

I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.

Respect My Authoritah!

Hopefully the literary scholars will team up with the lawyers and watch for any signs of trochiac tetrometer in Scalia's opinions from now on.

A Grain of Salt to Go with a Post from a Blogger I Admire

Ratio of government spending to potential GDP, via K-Thug

John Robb's a good guy. USAF Special Forces pilot, war expert, organic gardener... Writes a great blog on asymmetrical warfare called Global Guerrillas. Also writes a terrific blog on how to make yourself more resilient, Resilient Communities. I love that blog because, for environmental reasons, being resilient is a great idea. Also saves you money.

But his big reason for being resilient is that he thinks the nation state is hollowing and out, and he apparently doesn't believe that democracy can work out the huge problems we face. While I sometimes think he might be right, simply because Republicans seem determined to ruin everything if they can't get their way, I really wish he'd get his facts straight. Repeating right wing BS talking points to convince his readers that the government is going to fail might convince some of his right wing readers to plant a garden or install some solar panels, worthwhile goals indeed, but the lack of substance to his claims tends to just make him sound like another crackpot prepper (complete with the BS on the LifeLine, or Obamaphone, program!).

And since he's apparently decided not to post my comments correcting his mistakes, and I really believe he deserves this free service, I'll do it here...

"a government shutdown is nothing new. This is the 18th shutdown in the last 37 years."

Not really. As K-Drum points out today in his series of reminders you should read on this subject:

Prior to 1980, everything kept on running pretty normally during budget impasses. True shutdowns didn't happen until after a series of Justice Department rulings at the tail end of the Carter administration. Since then, there have been a handful of shutdowns prompted by garden variety disagreements over funding levels for defense and domestic programs, but they've been so brief as to be barely noticeable. The only exception was the long shutdown of 1995, prompted by Newt Gingrich's demands. 

So when you hear someone saying that there have been loads of government shutdowns in the past and this one is really nothing new, it just isn't true. In practice, there's only been one serious shutdown in recent history, and like this one, it was the product of Republican ultimatums.

"100% at the mercy of the 535 folks sitting in Washington posturing their next political move."

Jack Sheldon was the Bill who became a Law.

Actually, we're at the mercy of about 30 - 60 Tea Party Republicans in the House of Representatives who apparently never saw the Jack Sheldon School House Rock where he explains how a bill becomes law. You know, Democracy! What you flew jets to protect! That you blame both sides without understanding the dynamic that is causing this doesn't really help your case.

"This time, it’s not because of your safety, but just so the egos in Washington can watch out for your best interest."

What does this even mean? The egos in Washington that are causing this are a handful of Republicans that the Speaker of the House is too chicken to stand up to. All the Democrats in the House of Representatives would/will vote for a clean CR to keep the government going. And how was the last shutdown about safety? I thought it was about Newt Gingrich throwing a temper tantrum...

"The federal government stands for FAILURE."

Tell that to the millions of seniors and disabled people who aren't starving or freezing to death thanks to Social Security, SNAP, etc. It's still a shining city on a hill to those folks...

"Aside from its spending of over 9% of the total economy, the federal government is also deep in bed in key sectors, including; agriculture via Farm Bills, food and drugs via FDA and Food Stamps, banking and finance via the 6 agencies for oversight, rental real estate via Section 8 housing, cell phones via the LifeLine program and almost a dozen major undeclared wars since World War II."

Do you have a source for your numbers? Federal spending as a percent of GDP isn't really that far outside recent historic norms, considering the fact that we just had the biggest recession since the great depression (aka, The Little Bush Depression), and spending is designed to go up during bad times. In fact, federal spending as a percent of potential GDP is actually dropping now.

Feeding America

But I'm more interested in the details. While I agree that subsidies to highly profitable corporations are not helpful and a form of market rigging by the elites who like to redistribute wealth and income upward, you are lumping a lot of things together here that are actually quite different, and some of which are quite necessary if we'd like to live in a civil society where grandma doesn't have to eat cat food and keep her house 40 degrees in the winter. Cause, you know, Grandma can't exactly build an attached greenhouse or some solar panels. For instance, "76% of SNAP households included a child, an elderly person, or a disabled person." It's a very efficient program with very little waste that does a lot of good.

The FDA may be in the pockets of big pharma, (the bigger problem with drugs is that overly extended patents on drugs rip us off for about $300 billion a year), but when run by Democrats, they tend to take public safety a little more seriously than when run by Republicans who are just tools for the elites. Same with banking oversight. Republicans put foxes in charge of hen houses, and let Wall Street run wild enough to create the Little Bush Depression, while your Sr. Senator for Massachusetts is out there fighting everyday to make them more accountable. Doesn't seem fair to lump her in with the market riggers who caused the meltdown.

The "Obamaphone" program you mentioned is a favorite of wingnuts, which makes me wonder exactly where you're getting your information... The FCC recently enacted measures to save $2 billion over three years. In 2011, the program cost $1.6 billion (CEPR's handy budget calculator tells me this was 0.0452% of total spending in 2011--the horror!). And just today we found out that the strapping young bucks ripping off this government program include the wireless service providers. Odd that we don't blame these businesses for our future collapse as much as we do the "government."

And while you're well aware that I'm all for resilience, especially for environmental reasons, this kind of disingenuousness isn't helping:

"It would be easy to name billions, or trillions, of dollars of fraud and waste that goes into each and every one of these agencies and programs. Including the trillions of dollars of promises made into the future that they can’t mathematically keep (it may even be hard for them to print money fast enough to meet the demand)."

Actually, the amount of fraud and waste in our social insurance and welfare programs is surprisingly low. Social Security, Medicare, SNAP, AFDC, Section 8, all run very efficiently, and have very low rates of fraud. The idea that they are riddled with fraud is generally perpetuated by bullshitting conservatives and libertarians who care more about making a certain impression than they do about facts.

Further, our "unfunded" mandates are also overblown by the right wing blowhards. Social Security is fine for decades, at which point the relatively small shortfall could easily be made up for by lifting the cap on earnings subject to the tax, lowering payments, or increasing the tax slightly.

Via the Washington Post

The rapid rise of health care costs have slowed down, at least partially because of Obamacare. Maybe this is why the market rigging GOP is trying to stop it? Because it will fight the rapid cost increases in health care sector that are THE single issue driving our long term debt, but which also put money in the pockets of their contributors? We pay twice as much per person for health care that the rest of the civilized world. If we paid even close to what they pay, we'd have surpluses as far as we could see, even at current low historical tax revenues and high defense spending.

So, yeah. I love your work, man, but when you venture off into this stuff, it's like you're just regurgitating the BS scare tactics from Fox News. Read some Dean Baker and find out the actual facts about these things. You'll be doing your readers an even bigger favor if you use facts to make your case, instead of the right-wing detritus you're scooping up off the side of the road.

Government that at least tries

"The last time any president did this much in office, booze was illegal. If you believe in policy, if you believe in government that addresses problems, cheers to that."--Rachel Maddow

Look on the Bright Side

It's rare that I read something that drops my jaw, but check this out, from Dmitry Orlov's speech at the Long Now Foundation (h/t to John Robb of Global Guerillas):

Forget “growth,” forget “jobs,” forget “financial stability.” What should their [the government's] realistic new objectives be? Well, here they are: food, shelter, transportation, and security. Their task is to find a way to provide all of these necessities on an emergency basis, in absence of a functioning economy, with commerce at a standstill, with little or no access to imports, and to make them available to a population that is largely penniless. If successful, society will remain largely intact, and will be able to begin a slow and painful process of cultural transition, and eventually develop a new economy, a gradually de-industrializing economy, at a much lower level of resource expenditure, characterized by a quite a lot of austerity and even poverty, but in conditions that are safe, decent, and dignified. If unsuccessful, society will be gradually destroyed in a series of convulsions that will leave a defunct nation composed of many wretched little fiefdoms. Given its largely depleted resource base, a dysfunctional, collapsing infrastructure, and its history of unresolved social conflicts, the territory of the Former United States will undergo a process of steady degeneration punctuated by natural and man-made cataclysms.