Sunday, July 1, 2012

Know-nothings target Scalia

Following last week's series of Court Opinions--from the Obamacare ruling to the Arizona immigration laws ruling--there has been a great deal of commentary on the Court. With regard to the latter, much has been made of Justice Scalia's decision to read excerpts of his dissent from the bench. There's no question that Scalia was "fired up" about the issue and the ruling. And I think--in hindsight--it might even been fair to ask if he went a little overboard. Maybe in the same way President Obama went a little overboard in chiding the Court during a State of the Union Address? Or the way Democrats have been going a little overboard for the past several months in criticizing the Court over the Obamacare ruling it had yet to make (assuming all the while the Court would strike down the mandate)?

But did such actions bring about calls for resignation or Impeachment of Obama and a truckload of Democrats? No. In contrast, Scalia is getting both. First, there's E.J. Dionne--notable intellectual lightweight--who thinks Scalia should step down:
Justice Antonin Scalia needs to resign from the Supreme Court... 
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He's turned "judicial restraint" into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line. 
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama's decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama's move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
Now as it happens, I've had the good fortune to hear Scalia speak--and even meet the man--at an event (for the Heritage Foundation a few years ago). Scalia--like the other Justices, when speaking in public--was very careful not to comment on issues that would suggest partiality, that were overtly political, or that might come before the Court. He confined his remarks to general legal theory and issues already decided by the Court. So on that point, Dionne is tragically clueless. But on the next--on Scalia offering a bench statement in addition to a "fiery dissent"--Dionne proves himself to be an idiot. Scalia's "bench statement," as I noted in the first paragraph, was simply a part of his dissent.

The comments Dionne is railing against, as if they were offered separately, are right there in the dissent, in black and white and a permanent part of the record. The portion of the dissent in full (my boldface):
But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States 
“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for at least five years...,
“• is currently in school, has graduated from high school, has obtained a general education develop­ment certificate, or is an honorably discharged veteran...,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,”

then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non-en­forcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind.

The Court opinion’s looming specter of inutterable hor­ror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
It is true that the Administration's new program to grant amnesty to a certain class of illegals is not specifically tied to this case, but Scalia is not saying such is the case. Rather, he is using that program to demonstrate a point: that the Federal government isn't engaged in the enforcement of the actual laws governing illegal immigration as written. The program--instituted by executive fiat--is clear evidence of this claim and Scalia is justified in addressing it to support his position in the dissent. Dionne may not like it, the Administration may not like, but that's because they have their own views on the matter, which are inconsistent with Scalia's.

Next, we have radio and TV personality Thom Hartmann, formerly of Air America Radio, now widely scene  and heard by upwards of two hundred people on a weekly basis (which, to be fair, is probably a much larger audience than this piece will ultimately have). Not content with just a resignation, Hartmann calls for the Impeachment of Scalia. Fancying himself as some sort of historian, Hartmann defends his position with a warped version of events, as relating to the Impeachment of Justice Samuel Chase in 1804:
In 1796, Chase made several partisan campaign speeches for fellow Federalist John Adams. That would be like a Supreme Court justice going on the campaign trail and telling people to vote for Mitt Romney today. And Chase openly supported passage of the Alien and Sedition Act of 1798, which gave President Adams the power to jail his political rivals. Chase even used his power as judge to give harsher sentences to Jefferson's Democratic Republican supporters in court. So after Chase went out and publicly ridiculed the President in 1803 over voter reforms, Jefferson and his allies in the House of Representatives basically said enough is enough. In 1804 the House of Representatives impeached Samuel Chase on charges of judicial misconduct. And to this day, Samuel Chase is the only Supreme Court Justice to ever be impeached. Ultimately Chase remained on the bench, escaping getting kicked off by the skin of his teeth when the Senate failed to muster up the 2/3 majority needed to remove Chase from the Supreme Court. He would serve on the bench for 7 more years before dying of a heart attack in 1811. And that's the end of Samuel Chase's story.
But in 1982 the man was "reincarnated" when Ronald Reagan appointed Antonin Scalia to be a justice on the Supreme Court. And on Tuesday in his dissenting opinion against the majority's decision to strike down three out of four provisions in Arizona's controversial anti-immigration laws, Justice Antonin Scalia had his "Samuel Chase moment." He went unhinged and publicly ripped President Obama for not enforcing immigration laws just a few days after the president had announced that the nation would no longer deport young undocumented immigrants who were brought here as children and are now in school or working, keeping their nose clean.
Hartmann laments that Chase was Impeached for criticizing the President over expanding voter rights, but Scalia won't be--but should be--Impeached for criticizing the President "for trying to save young undocumented immigrants from deportation," It's a cute story, but basically nonsense. Some readers might have noticed the year of Chase's Impeachment is quite close to the year I cited in my previous piece. In 1803, Chase sided with Chief Justice Marshall in Marbury v. Madion and as I noted in that piece, Jefferson was none too happy with this. Hartmann actually makes this point too, but then proceeds to completely forget it.

In 1803/1804, Jefferson's party--the Democratic Republicans--had control of the House and the Senate. The minority party--the Federalists--could do little to impede them. But members of the Court were mostly sympathetic to the Federalists, having been appointed under Washington, when the Federalists reigned supreme and spearheaded the drafting of the Constitution and its ratification. In the early days of the American Republic--which is the era we are talking about--there were many issues that had not been fully resolved, with respect to how the branches of government would co-exist and operate. Judicial Review was one of these issues and Jefferson--along with his fellow Democratic Republicans--saw the power as one that would give the Court too much power. After Marshall successfully asserted it, Jefferson desperately wanted to find a way to "unassert" it. But to get the Court to reverse itself, he needed a stick. Impeachment became that stick, though it ultimately failed.

To put it simply, the Chase Impeachment was a test case for Jefferson to see if he could get rid of some of the Justices on the Court. If the Impeachment had been successful, Marshall was next. But the Senate--despite its makeup--decided that it was Jefferson who was being too political, not Chase. Thus, it voted to acquit Chase of all charges in the Impeachment.

Hartmann's ignorance on this is truly profound. He thinks Chase's political activities in 1796 say something significant, are some sort of black mark on Chase's record. But it was 1796, not 1976. The people in the fledgling government--in all branches--had made their bones establishing the new nation, involving themselves in the actual creation of the government, which necessarily included taking sides on important issues. His naked approval of Chase's Impeachment marks him as a buffoon, unconcerned with historical realities but only his own politics of the moment.

Morevoer, just as Dionne did, Hartmann presents Scalia's reading of his dissent as a bench statement made above and beyond the actual dissent, completely ignorant of the fact--again--that the comments are in the dissent, proper. Both would have done better to have actually read the dissent first, before opening their mouths.

Silly rants by silly people.

Cheers, all.

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