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.


They don’t shoot wild horses, do they?

A three-judge panel of the 9th Circuit Court of Appeals rejected appeals by several horse-hugger groups intent on stopping the Bureau of Land Management from rounding up wild horses and burros.

Judge Johnnie Rawlinson of Las Vegas dissented, but it was not a dissent the horse-huggers should hang their hats on.

Wild horses (BLM photo)

Rather, her dissent could be cited by the Nevada Association of Counties and the Nevada Farm Bureau Federation, who have sued the Department of Interior, the BLM, Secretary of the Interior Sally Jewell and others for failing to follow the requirements of the Wild Free-Roaming Horses and Burros Act of 1971.

In the fall of 2010 the BLM rounded up 1,800 wild horses and burros from the 800,000-acre Twin Peaks herd management area on the Nevada-California border, because there were three times as many horses and burros as the range could sustain. After the gathering, fewer than 1,000 horses and burros remained.

The groups In Defense of Animals and Dreamcatcher Wild Horse and Burro Sanctuary and others sued to try to stop the gather and continued the suit afterward claiming the BLM failed to follow the law to protect the animals from “capture, branding, harassment or

Two judges ruled the BLM action was within the scope of the law.

But Rawlinson wrote in her dissent that the BLM failed to follow the letter of the law as clearly written:

Section 1333(b) authorizes the Secretary to remove only
“excess animals.” If an overpopulation of wild horses exists,
the Act mandates that any removal take place “in the
following order and priority, until all excess animals have
been removed”:

(A) The Secretary shall order old, sick, or
lame animals to be destroyed in the most
humane manner possible;

(B) The Secretary shall cause such
number of additional excess wild freeroaming
horses and burros to be humanely
captured and removed [for adoption] . . . ; and

(C) The Secretary shall cause additional
excess wild free-roaming horses and burros
for which an adoption demand . . . does not
exist to be destroyed in the most humane and
cost efficient manner possible

The Act couldn’t be clearer. (Emphasis added.)

In other words, the BLM is failing to destroy excess animals as the law dictates and is warehousing them in corrals and on private pastures in the mid-West.

There are 40,000 wild horses and burros on the open range, which exceeds by nearly 14,000 the number the range can handle. Off the range, there are more than 48,000 animals in either short-term corrals or long-term pastures, which the taxpayers are feeding for their average 25-year life span.

The Nevada federal suit brought by the counties and the farm agency argues the BLM is starving the very animals the law was intended to protect.

“Free-roaming horse and burro herds in Nevada are frequently observed to be in malnourished condition, with the ribs and skeletal features of individual animals woefully on view and other signs of ill-health readily observable,” the suit says.

The federal agencies often claim that their ability to properly maintain the population of wild horses and burros is hampered by a lack of funds. The suit calls this a “self-inflicted handicap,” because half of the BLM’s horse and burro budget is going to warehousing those 48,000 animals.

At the Twin Peaks roundup, the BLM failed to first destroy all the “old, sick, or lame animals.” In fact only two were euthanized due to leg injuries, according to BLM records. Nor has there been any mention as to whether any of the unadoptable animals were “destroyed in the most humane and cost efficient manner possible.”

Oddly enough an attorney for the horse-hugger groups told Courthouse News, that she agreed with Rawlinson.

“Aside from Judge Rawlinson’s dissent, the court refused to recognize any constraint on the BLM’s management of wild horses,” the attorney said in an email. “We had hoped that we would get a panel that would actually look past the BLM’s hyperbolic rhetoric and recognize that Congress clearly intended to protect wild horses and burros in their wild state, and in doing so imposed constraints on when and how the agencies could manage them.”

But instead of humanely destroying the feral horses and burros as the law dictates, the BLM states proudly on its website:

The Department of the Interior and the Bureau of Land Management care deeply about the well-being of wild horses, both on and off the range, and it has been and remains the policy of the BLM not to sell or send wild horses or burros to slaughter.  Consequently, as the Government Accountability Office noted in a report issued in October 2008, the BLM is not in compliance with a December 2004 amendment (the so-called Burns Amendment to the 1971 Wild Free-Roaming Horses and Burros Act) that directs the Bureau to sell excess horses or burros “without limitation” to any willing buyer.”

They admit they are violating the law.