How do you solve a problem like Scalia? … redux

Justice Antonin Scalia (Getty Images via WSJ)

The death of Justice Antonin Scalia has ignited a political firestorm over how and when and who should be appointed to replace this irreplaceable conservative legal scholar. There has also been a torrent of articles about the man’s legacy. The Wall Street Journal alone has a dozen pieces recounting his effluence on the law and his “greatest hits.”

The one thing he should most be remembered for, perhaps, is his ardent defense of the First Amendment.

In July 2002 I wrote a column for the Las Vegas newspaper under the headline: “How do you solve a problem like Scalia?” It has long since disappeared from the ether.

The headline was lifted from a lyric by a liberal/satirical Washington, D.C.-based singing and dancing group who called themselves the Capitol Steps. It, of course, is a parody of the “Sound of Music” song about Maria.

The ditty includes these lines:

How do you solve a problem like Scalia?
How do you fix the mess Scalia made?
How do you find a legal panacea?
If he doesn’t go, we’ll overturn Roe v. Wade

Oh, maybe now Bush owes Antonin a favor
Maybe our reputation isn’t sound
Remember when they’d report
The president picks the court
It’s gotten to be the other way around

My column’s solution to the problem was: cloning, because there aren’t enough like him on the court.

The specific topic was the court’s ruling and Scalia’s 5-4 majority opinion in the case of Republican Party of Minnesota v. White, which had been handed down a couple of weeks earlier.

It upheld the free speech rights of state judicial candidates. A number of states, including Nevada, had laws on the books that basically gagged elected judges from speaking out about matters they might someday have to rule on.

Nevada had fined two judges for answering a radio host’s question about their political party affiliation.

The American Bar Association had a conniption fit over the ruling, saying it would turn judicial elections into unseemly free-for-alls. Of course, the Bar didn’t and doesn’t think voters are smart enough to elect judges.

Scalia quoted an earlier dissent by Justice Thurgood Marshall: “[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.”

Scalia went on to reason: “Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. ‘[D]ebate on the qualifications of candidates’ is ‘at the core of our electoral process and of the First Amendment freedoms,’  not at the edges. … ‘The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.’ … ‘It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.’  … We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”

Of course, such matters are never truly settled and judges find ways to dance around those “edges.”

Just a couple of weeks ago the 9th U.S. Circuit Court of Appeals sitting en banc managed to uphold an Arizona law that limits judges’ right to free speech about judicial elections.

One of the judges supporting this free speech restriction was Nevada’s own Johnnie B. Rawlinson, who was appointed to the court by Bill Clinton at the urging of Sen. Harry Reid.

A story in today’s Review-Journal quotes a law professor as saying Reid had once touted Rawlinson as a potential candidate for the Supreme Court.

Not exactly someone who could fill Scalia’s shoes.


36 comments on “How do you solve a problem like Scalia? … redux

  1. Patrick says:

    I wonder whether Scalia’s near (if not total) absolutist First Amendment Right position would have required him to find Hillary’s alleged use of private emails to disseminate top secret information to be protected First Amendment Speech?

    In any event, guess we will never know. (Cause the big lug so often interpreted the Constitution in a way that he believed was appropriate in spite of his claims to the contrary.)

  2. nyp says:

    According to NASA, last month was the hottest January ever recorded.

  3. Rincon says:

    Save your breath, nyp. They might believe it exists if the atmosphere caught fire, but even then, I think there’s a 50:50 chance they would call it a natural phenomenon and be very sure of themselves. After all, it is impossible to prove otherwise no matter how real it is or how severe it becomes. It’s like evolution and creationists.

  4. Winston Smith says:

    Antonin Scalia was known as a strong Originalist, meaning he actually believed the Constitution should be interpreted the same way the Founders would have.
    My question is, how can a U.S. President nominate someone for a vacancy on the Supreme Court to honestly take the oath of office to, “bear true faith and allegiance” to the Constitution if they are the opposite of Scalia in judicial philosophy, and don’t really give a damn what the Founders believed when they wrote it?
    That would be like Major League Baseball hiring an umpire that refuses to follow the rule book and instead makes up his own rules during a game.

  5. nyp says:

    Actually, Scalia denied being an “originalist”. He expressly and repeatedly denied believing in following the original intent of the framers.

  6. He said it does not evolve.

  7. nyp says:

    Correct, but he said that he did not follow the “original intent” of the framers.

  8. Barbara says:

    Scalia was an originalist. He said he did not look to what the founders intended, but rather what the meaning of the text was at the time of its writing.

  9. nyp says:

    “You will never hear me refer to original intent because I am first of all a textualist …. If you are a textualist you don’t care about the intent.”
    Antonin Scalia, 1996

  10. Steve says:

    Interpretation should not be changing the very meaning of words.
    Interpretation should include the base dictionary definition of every word in the document.

    As for Rincon’s response to nyp, of course the climate is changing,,,it has always changed and it will always change.
    That discussion is not the argument.
    Tell me, to what degree is human activity influencing the change in climate?

    We’ve been down this road before, you guys couldn’t find an answer for that then and you will not find one today.

  11. Barbara says:

    NYP – being an originalist has nothing to do with intent of the founders. Justice Scalia said he was an originalist. He believed in applying the original meaning of the text. The intent of the founders is not germane only what the understanding was at the time of writing.

  12. Rincon says:

    If Christians interpreted the Bible the same way that Conservatives interpret the Constitution, they would still be sacrificing bulls at the altar.

  13. Patrick says:

    Crazy. I mean pardon me for saying so, but trying to make sense out of what Scalia, and his band of merry “originalistas” or textualists or what have you, are using as their arbitrary means of making decisions about the Constitution, is nuts.

    They are all like a Bunch of crazies hanging around Chauncey Gardner trying to convince themselves, and everyone else that he’s a genius.

    It’s daft.

    Here’s why; how would Scalia vote on whether appropriations to the Air Force to fund the newest laser weapon go when the Constitution doesn’t even provide authority for the government to maintain an Air Force, and no one alive during the Constitutional Convention could have thought, or said, or even imagined, that the issue would come up.

    Nuts I tell ya.

  14. Barbara says:

    Not if you understand the Bible.

  15. Steve says:

    The Air Force originated as the Army Air Corp as such it remains fully constitutional even as a separate branch of the military.

    Tortured illogic, thy name is Patrick.

  16. Patrick says:

    Steve thanks for the history lesson; I’m sure you learned something.

    The point had nothing to do with where the Air Force came from but instead three things;

    First that Scalia “thought” that his job was to understand what the words in the Constitution meant by reference to the words used and the understanding of the meaning of the words by the people that used the words when the Constitution was adopted;

    Second; that the Constitution doesn’t use the words Air Force and yet the Air Force receives US taxpayer funding every year; and

    Third; that Scalia believes that unless a power is specifically granted to the federal government (in this case, the power to create, fund, and utilize an Air Force) that power is reserved to the States and the people according to the 10th Amendment.

    Like I said, the guy was a loon.

  17. Winston Smith says:

    “bear true faith and allegiance”
    “bear true faith and allegiance”
    “bear true faith and allegiance”
    “bear true faith and allegiance”
    “bear true faith and allegiance”

    “On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the one in which it was passed.”
    – Thomas Jefferson

    War is Peace; Freedom is Slavery; Ignorance is Strength

  18. Patrick says:

    “The Louisiana Purchase? Don’t mind if I do”

    —-Thomas Jefferson

    War is Peace; Freedom is Slavery; Ignorance is Strength; Bumper Sticker Philosophy is Truth

  19. Let’s let Justice Scalia himself…tell us his views on Constitutional interpretation in the first few minutes of the above video clip…

  20. Steve says:

    The way Patrick is interpreting words, there “shall” be no meaning at all….

    Patrick is interpreting the US Constitution “shall” not allow for defense of the country.

  21. Patrick says:

    The way Steve is interpreting shall, is wrong.

    According to the law.

  22. Winston Smith says:

    Unlike these days, the Louisiana Purchase was a treaty that actually required ratification from the Senate, which it did, 24-7. These days, of course, the ratification of treaties is so tiresome, the President simply doesn’t offer the opportunity to the Senate if he doesn’t feel like it.

    Meanwhile, to “bear true faith and allegiance” still means to respect the document as written, instead of allowing baserunners to go from 2nd to Home directly, because you feel sorry for them.

  23. Patrick says:


    You too?

    Time was that you admitted Jefferson did not do what he was supposed to do and then just said something about how it showed how men were fallible or that Jefferson was corrupted by Adams or someone; led astray from the true religion as it were.

    And now?

    War is Peace. Freedom is Slavery. Ignorance is Stength. Bumper Sticker Slogans are Truth?

  24. Some of them are…my bumper sticker: “My give a damn’s busted!”

  25. Steve says:

    Words “shall” only mean what Patrick claims they “may” mean!

  26. Anonymous says:

    “What is SHALL?
    As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to “may,”) to carry out the legislative intention and In cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Also, as against the government, “shall” is to be construed as “may,” unless a contrary intention is manifest. See Wheeler v. Chicago, 24 111. 105, 76 Am. Dec. 736; People v. Chicago Sanitary Dist., 184 111. 597, 56 N. E. 9.”.:;: Madison v. Daley (C. C.) 58 Fed. 753; Cairo & F. R. Co. v. Ilecht, 95 U. S. 170, 24 L. Ed. 423. SHAM PLEA. See PLEA. SHARE 1082 SHERIFF”

    According to the law.

    Law Dictionary: What is SHALL? definition of SHALL (Black’s Law Dictionary)

  27. Steve says:

    ” SHAM ”

    says it all

  28. Anonymous says:

    “Not if you understand the Bible.” I don’t claim to be a biblical expert. Maybe you can educate me. The Old Testament specifically requires animal sacrifice. Is there anyplace where the New Testament specifically removes this requirement?

  29. Rincon says:

    Oops, wrong button. I’m anonymous.

  30. Barbara says:

    I would never claim to be an expert either, but in my reading of the Bible, God required animal sacrifices so the individual, through faith and obedience, could have forgiveness of sin. This was a temporary atonement and hence the sacrifices had to be repeated. They also had to be performed exactly as God proscribed. See Lev chapters 4 and 5 and chapter 16 concerning the Day of Atonement. (This is where we get the term scapegoat.)

    Jesus Christ, as the ultimate and perfect sacrifice through his death on the cross, fulfilled the Old Testament Law. This is why Christ is sometimes referred to as the Lamb of God. (John 1:29) Christ took the sins of all mankind with him to the cross, so we all now have forgiveness through his death. (2 Corinthians 5:21). Through faith and obedience to this plan of salvation, we can receive forgiveness.

    The animal sacrifices were meant to prepare the people for the ultimate sacrifice of God’s son. They foreshadowed Christ’s sacrifice, not just for one people or nation, but for all mankind. (Hebrews 7:27). Christ is now the only mediator between God and mankind. 1 Timothy 2:5.

  31. Patrick says:

    Some people (Steve I’m looking at you) refuse to learn.

    The definition of “shall”, according to the law, has nothing to do with what I think it should be. And it wasn’t me who defined it, it merely is what it is, and has been for hundreds if years.

    But Steve has his own ideas.

    Where’s Orwell when you need him? Winston?

  32. Steve says:

    Sham Plea….Patrick is trying to use this as support!

    it is to laugh…at Patrick.

  33. Rincon says:

    Apparently then, the Bible never reversed its position on animal sacrifice. Rather, it seemed reasonable to assume. So if Biblical fundamentalists interpreted the Bible as Conservatives do the Constitution, we would still be sacrificing bulls.

  34. Barbara says:

    I would suggest to get the book and read it.

  35. Rincon says:

    Twice so far. Also read the Koran. Don’t bother with that. It’s pretty worthless. And you?

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