‘You Shouldn’t Appoint Someone Like Scalia to Any Office’

Janine Jackson interviewed Paul Rosenberg on Antonin Scalia’s record for the February 19, 2016, CounterSpin.

Tom the Dancing Bug 1277 scalia - beyond the grave

Ruben Bolling’s Tom the Dancing Bug remembered Justice Antonin Scalia more clearly than most media eulogists.


{ name: “1. CounterSpin Paul Rosenberg Interview “, formats: [“mp3”], mp3: “aHR0cDovL3d3dy5mYWlyLm9yZy9hdWRpby9jb3VudGVyc3Bpbi9Db3VudGVyU3BpbjE2MDIxOVJvc2VuYmVyZy5tcDM=”, counterpart:””, artist: “”, image: “true”, imgurl: “” }

MP3jPLAYERS[5] = { list:MP3jPLAYLISTS.MI_5, tr:0, type:’MI’, lstate:true, loop:false, play_txt:’Play’, pause_txt:’Pause’, pp_title:’FAIR’, autoplay:false, download:true, vol:80, height:71, cssclass:’ ‘, popout_css:{ enabled:true, colours: [“#fff”, “rgba(201,207,232,0.35)”, “rgb(241,241,241)”, “rgba(245,5,5,0.7)”, “rgba(92,201,255,0.8)”, “transparent”, “transparent”, “#525252”, “#525252”, “#768D99”, “#47ACDE”, “”, 600, 200 ],
cssInterface: { “color”: “#525252” },
cssTitle: { “left”: “16px”, “right”:”16px”, “top”:”8px” },
cssImage: { “overflow”: “hidden”, “width”:”auto”, “height”:”71px” },
cssFontSize: { “title”: “16px”, “caption”: “11.2px”, “list”: “12px” },
classes: { interface:’ verdana-mjp’, title:’ left-mjp norm-mjp plain-mjp childNorm-mjp childPlain-mjp’, image:’ Himg right-mjp’, poscol:”, ul:’ darken1-mjp verdana-mjp med-mjp childNorm-mjp childPlain-mjp left-mjp’ }} };

MP3 Link

Janine Jackson: Chief Justice John Roberts said that the death of Antonin Scalia, the longest-serving Supreme Court justice who died February 13, represents “a great loss to… the country he so loyally served.” But though encomia lauding Scalia’s service and his philosophy are coming from many quarters, they are rubbing many people very wrong indeed. And mindful of journalism as a first draft of history, some are concerned that Scalia’s official memory will be a serious distortion of his real ideas and impact. Paul Rosenberg is a contributor at Salon.com, a columnist for Al Jazeera English and senior editor at Random Lengths News. He joins us now by phone from Southern California. Welcome to CounterSpin, Paul Rosenberg.

Paul Rosenberg: Hi. Glad to be with you.

Paul Rosenberg

Paul Rosenberg

JJ: We expect obituaries to tell us about a person’s unfailing graciousness and how he loved a joke and shooting skeet. But it matters very much how reporters characterize Scalia’s ideas and his record. I was never going to shoot skeet with the guy, but I am living in a country whose laws he shaped. So I want to start you with what is presented as his big idea, what’s behind the “conservative intellectual renaissance” that the New York Times says that Scalia led: originalism. Now, setting aside how Scalia used it, how much sense does it make just as an idea, originalism?

PR: Well, how he used it makes a lot less sense than the broader sense that it conveys.

JJ: Uh-huh.

PR: If you want to take the broader sense to mean trying to understand what things were originally intended to do, that can be a useful starting place. But if you limit it to dictionary meanings at the time, that’s a really bizarre way to go about things.

And it’s not something that he even did himself when it came to perhaps his most notorious case, Heller, in which he just ignored the preamble to the Second Amendment and said, oh, that just doesn’t count. You know, we don’t have to worry about “well-regulated militias,” let’s just go right to “the right to bear arms.” It’s more of a posture, a bludgeoning instrument to attack others than something that’s really a solid guiding principle that he himself actually was faithful to, or that any of us should take seriously, really.

You want to look to political psychology to understand what’s going on here. It’s very much reasoning to reach a predetermined result, and that’s not what judges are supposed to do. But people can’t help but do it. What they can do is to be more conscious. And he was one of the least conscious people at what he was doing.

For example, I point to a very devastating review of his book that was written by another very prominent conservative, Judge Richard Posner, who’s been called the most important conservative thinker who’s not on the Supreme Court.

JJ: Uh-huh.

PR: And he just ripped that book to shreds. And I make reference to it in my piece, because it’s so devastating and yet you can’t say, “Oh, he’s just a liberal attacking Scalia.” He’s someone who comes out of the same general political philosophy, but he thinks that Scalia’s presentation and way of thinking about it is just hopelessly muddled and incoherent, the exact opposite of what his reputation is.

JJ: If someone wants to know what are the biggest cases or the most lasting legacy of Scalia’s time on the Court, what would you point to?

PR: Bush v. Gore, obviously.

JJ: Right.

PR: I mean, in Bush v. Gore, basically what they ruled was that it would be an “irreparable harm” to continue counting the votes. And the idea that that would be the case, and that only harm to Bush should be considered, not harm to Gore or to the voters, it was just without precedent. You never find it, it was so unprecedented. Just the idea of taking this venerated concept and just throwing it around, you know, like confetti, it was a bizarre act with a very indefensible outcome. So that’s one thing.

JJ: And his reaction, of course, when people complain about Bush v. Gore, is?

PR: “Get over it.”

JJ: “Get over it.”

PR: That’s how he defended himself; he just told people to get over it.

But he had the same underlying attitude again in the Shelby County case, in which they gutted the Voting Rights Act. The Voting Rights Act—it’s not just a good idea, it was an enactment directed by the Constitution, the 15th Amendment, and it’s something that they were actually constitutionally directed to do. And, basically, the judges decided, well, you know, you didn’t do a good enough job; you should have updated your maps that you were using in a different way than you did.

JJ: Uh-huh.

PR: And the Congress held months and months of hearings; they generated tens of thousands of pages to document what they were doing. And the idea that the Court could come in and just toss that out and say, not good enough—that’s the height of arrogance. And yet he was someone who, when it suited him, would turn to democracy and say, we have to defend democracy. He used democracy as his justification in opposing gay marriage: People should have the right to be bigots. So he’s bizarrely inconsistent everywhere you look.

JJ: More than hearing that he was a sweetheart who loved his mother, you know, that sort of softening, the sort of fuzzing-up of what Scalia actually said in particular cases seems much more worrisome to me. And on that note, I just wonder what you’re making of the media coverage.

PR: The media coverage is atrocious, but it’s of a part with his heritage. He devoted a great deal of energy to proselytizing. He was involved in the institutional organizing of a foundation of the Federalist Society. So all of this propaganda that we’re hearing, and much of it just repeated by people just trying to do a job, covering the news, you know, just swallowing this stuff whole. And I think you can’t really separate it out. He uses things like calling gay rights “special preferences.”

JJ: Right.

PR: He uses the right-wing activists, weaves them into his argument. So it’s very much a mistake to think of this as something separate or separable. It’s all part of the same culture, and it’s part of the same political movement. And you can’t really separate the law from the politics from the theatrics, and the weaving of false narratives throughout all of it.

JJ: And the idea of being personally caustic or bitter, undermining, making fun of his colleagues’ rules and rulings and thoughts, and essentially calling them stupid, that seems to me to just speak to a temperament that just doesn’t seem like what you’re looking for in a Supreme Court justice. But I’m reading about it now as just, you know, he was just bombastic; he just felt things very strongly.

PR: You’re absolutely right in that. I mean, they’re supposed to look at judicial temperament in judges, and honestly you shouldn’t appoint someone like Scalia to any office. Because judicial temperament is something he totally lacked. And you can see that reflected in his rulings as well as in his manner. It can be entertaining and it might be nice to see on TV, but in the courtroom, where people’s lives hang in the balance, that’s not what we want a judge to be like. We want a judge to be able to sympathize, to be able to understand both sides, not just one. And that kind of arrogance just is a neon sign that this person is not qualified to do that.

JJ: One of the most devastating rulings associated with Scalia is Herrera v. Collins, and you wrote about that in Salon. It seems to me very strikingly important, his position about killing an innocent person. What happened there?

PR: Well, his ruling was that there was no constitutional right that an innocent person could use to secure a rehearing on a claim of actual innocence. If all of your normal legal procedures didn’t give you a way to get a rehearing, evidence that you actually were innocent—there was nothing more to be done.

JJ: Yeah.

PR: It’s a very closed, hermetically sealed view of the law, that there’s no overarching responsibility to do justice; all there are are the set of rules. No sense of a spirit of the laws at all, in my view, in that approach. Because innocent people can and have been executed by the state under that theory.

JJ: Let me ask you, finally, what do you think is going to happen? I won’t ask you to predict, but what do you make of, first of all, the argument that Obama is not allowed to appoint a successor to Scalia? And, gosh, it really makes for kind of wild political times, doesn’t it?

PR: Well, yeah. The claim that Obama is not allowed to is just ridiculous. No one has ever said this before. This is a completely new argument. And would they make it if he were not black?

JJ: Right.

PR: Would they make it if he were not a Democrat? We certainly know they had never made it before. The Constitution says he “shall appoint,” not that he may. It’s not optional, it’s his duty. It’s very clear-cut. So he’s just doing what he’s supposed to do.

But I would say that what Obama ought to do is nominate someone very high-profile, so that the story does not go away. Of course, it goes without saying, someone qualified. So that it matters to people and it cannot be ignored.

JJ: Any final thoughts, Paul Rosenberg, on the way we should think of Antonin Scalia, what’s important to remember about him, and, what journalists who are going to be talking about him for a while, some things they might be thinking about or following up on?

PR: I think the most important thing probably is simply to remember that in Herrera he didn’t see the law protecting innocent life, and that in Heller he didn’t see a need to read the actual text, which he was known for championing. Those two things are what I would keep in mind as the most telling of who he really was.

JJ: We’ve been speaking with Paul Rosenberg. He’s a contributor at Salon.com, also senior editor at Random Lengths News. You find his article, “Shed No Tears for Antonin Scalia,” on Salon.com. Paul Rosenberg, thank you so much for joining us today on CounterSpin.

PR: Thank you very much.

This piece was reprinted by RINF Alternative News with permission from FAIR.