posted
At least Specter is willing to act in the name of common sense: too bad he was not there to reject that nutcase Scallia from the bench.
-------------------- Justice inclines her scales so that wisdom comes at the price of suffering. -Aeschylus, Agamemnon
Registered: Aug 2002
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posted
Specter was in the Senate at the time. And the reason no one put up a fight with Scalia is that so much energy had been put into trying to keep Reagan from elevating then-Associate Justice Rehnquist that they couldn't put up a fight against someone as charming as Scalia was at his hearings.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
One tip: Watching Bill Hicks' Revelations (1993) makes you depressed, talking about the days of Reagan and Bush finally being over... how far we you have come.
quote:Originally posted by David Sands: they couldn't put up a fight against someone as charming as Scalia was at his hearings.
A great act: now he's the "press nazi" that forcibly has recorders confiscated whenever he gives a speach so the assinine things he says cant be broadcast.
Guys a head-case.
-------------------- Justice inclines her scales so that wisdom comes at the price of suffering. -Aeschylus, Agamemnon
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posted
OK, I think there needs to be some clarification here with the swipe at Justice Scalia regarding his limitations on the press during his talks. If you are referring to the speech he gave at Presbyterian Christian High School in April, Scalia never directed the marshal to confiscate and destroy the recording made of his speech. He personally apologized to the reporters. He has since instructed his security detail not to obstruct such recordings.
As for broadcasting his speeches, it is perfectly within his right as private citizen to condition what will and will not be recorded when he is gracious enough to speak to groups. People have such a distorted view of freedom of the press. The protection prevents the government from restricting the rights of the press to say what they want, not the right of the press to impose whatever conditions of publication its deems appropriate on a non-governmental actor protecting conduct they think appropriate to keep less-than-fully public. When he is acting outside the confines of his office, there is nothing unconstitutional or illegal about what he is doing. While he is a public figure, there is no legal doctrine that eliminates his right to set the conditions under which he will have these talks. And those kinds of conditions are more common among judges than most realize. In fact, knowing that he hears constitutionally contentious controversies that could be used for political purposes, it is his duty to impose conditions that minimize whatever political involvement would result from taking his words out of context. See the American Bar Association's Model Code of Judicial Conduct, Canon 5(D).
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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quote:Originally posted by David Sands: In fact, knowing that he hears constitutionally contentious controversies that could be used for political purposes, it is his duty to impose conditions that minimize whatever political involvement would result from taking his words out of context.
Or, the converse of that is true...the fact that he says controversial things about controversial topics that he could be ruling on from the bench makes it even more important to listen to those things he says when not wearing the robes.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
Jay, I won't get too deep into it because I'm not a credientialed jurisprude, but your statement implies to me that you hold a derivative assumption of the legal realist school of jurisprudence: that all judicial processes are politics by other means. Because Justice Scalia is a policy-setter by means of his role, the public has a right to know everything that he says, not matter whether he actually is saying something as a private citizen.
Now, I won't say that that adjudication has no political valence. However, if one took seriously legal formalism (a competing jurisprudential camp, and one from which Justice Scalia derives much of his philosophy) as a valid decription of how judges decide cases, then it is possible that a judge who practiced virtue jurisprudence (sorry, it's a long post, but more eloquent than I can explain here) could comment on such contentious cases without rendering his interpretation of the law apart from actual litigation. If that is the case, there is little danger in having someone like Justice Scalia give these talks where these topics arise. No policy is set in such events because he has not engaged in the judicial decisionmaking process. However, the danger that his words could be twisted in such a way as to impugn the impartiality of his tribunal still exists. As he is ethically obligated to minimize appearences of partiality, I think his choice to restrict what media may be recorded is an appropriate one.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
I don't know if you're familiar with the debate about privacy laws in the UK, and whether we should have or need them, but this is a very similar issue. Whenever some papparazzo snaps a pic of some celebrity which that celeb generally wishes they wouldn't, the issue resurfaces, but for the most part the debate is fuelled by how it would relate to those in public life, i.e. politicians.
The politicos by and large want to have their privacy protected from public scrutiny under the assumption they're entitled to a private life. The contrary argument goes that quite often what they get up to in their private lives reflects greatly upon their moral probity. This was most apparent in the later years of the last Conservative government, when - in the midst of a big family values push - Ministers were either shagging their secretaries, researchers, friends' wives, or being found dead in bondage gear asphyxiated by an orange.
So, in the UK attempts to bring laws top protect people's privacy are generally seen as being the first step on a path to limiting free speech and the freedom of the press. It was expected after Diana's death that the press would suffer for the actions of those papparazzi, but in fact nothing changed, and even the guys on the motorbikes got ofgf with little more than a wrist-slapping.
And this is really the same thing. Scalia is addressing these people because he is a Justice of the Supreme Court. That makes what he says a matter of public interest.
But as for privacy rights being the first step toward a draconian crack-down on free speech, try this article. We've already taken many steps down the slope. We haven't slipped much yet.
I never heard about a sex scandel involving fruit. Sounds interesting. Perhaps I shouold google that...
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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quote:Originally posted by David Sands: However, the danger that his words could be twisted in such a way as to impugn the impartiality of his tribunal still exists. As he is ethically obligated to minimize appearences of partiality, I think his choice to restrict what media may be recorded is an appropriate one.
Maybe he should be ethically obligated to minimize appearances of partiality not by limiting what people hear of what he says, but rather by actually being, you know, impartial.
Given Justice Scalia's well publicized need to recuse himself from the recent Pledge of Allegiance case in and his proclivity to make controversial public statements, I think limiting access to public statements which may or may not impugn his impartiality via a contextual argument is particularly unacceptable in a democratic system.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
Since my law school training is somewhat lacking, I can't respond with a fully formed post on legal formalism.
But I find it incomprehensible that Justice Scalia can give reasoned public statements and then fall back on statements like this to maintain a thin veneer of impartiality.
quote:Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court.
I for one do not see how his long, thoughtful, reasoned, publicly held views on the subject can not but inform his opinions.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
I forget the guy's name. Might be off on the details, it was at least ten years ago.
I know what you said to Jay. I just don't agree with it. I think Scalia can comment on matters of law without it necessarily compromising his impartiality. After all, he's just one of nine Justices. However, the fact remains he was giving a public speech because he IS a Justice, and that makes it a matter of public record.
Interesting article. Might be worth discussing; certainly the gulfs between total censorship and total free speech, and between privacy and free speech, are very similar in that the law needs to find some ground in between, that can change according to individual circumstances - and it's very hard if not impossible to legislate for that.
For me, in the case of censorship, it comes down to taste - and how do you put something as nebulous (especially given how individual taste can be) as that? I've long characterised it thus: while I believe that, say, hard-core porn should be available to the public, I don't really want to see a rack of it in WHSmiths. I'm quite happy with it being only available in licenced sex shops.
posted
He has been largely impartial. Where he hasn't, he has appropriately recused himself. As for limiting access to his public statements, he hasn't prevented access to what he has said, he's just specified the means. Reporters have still been allowed to report exactly what he's said other than that instance.
quote:I for one do not see how his long, thoughtful, reasoned, publicly held views on the subject can not but inform his opinions.
Simply because someone's opinion is informed by his experiences does not mean that he has irrevocably decided how he will vote in future litigation.
Lee: interesting article. Dare I assume they have ever gotten closer to figuring it out with finality?
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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