Scalia, the Constitution, and Me

In Every Case but One  -- My Own -- Scalia Sided with Top-Down Tyrannical Power

For his entire tenure on the Supreme Court, Justice Antonin Scalia upheld top-down power of corporations and governments over ordinary and extraordinary human beings.

 BUT – in a case where I was one of nine “ordinary and extraordinary human beings” suing the FBI for its tyrannical and illegal “COINTELPRO” attacks on our First Amendment right of free assembly, then Judge Scalia ruled in our favor, against the FBI. 

He was still a judge on the Federal Circuit Court of  Appeals.  He was one of three judges who upheld a District Court decision that found the FBI liable for damages because of its use of outright theft, forgery, libel, and other illegal acts to obstruct our anti-war and anti-racist political organizing.

In the light of the Constitution, his vote was obvious. In the light of all the rest of his record, I did not understand his vote then, nor have I ever since.

As result of the decision, I was able to buy my first computer for doing Shalom Center work and to offer David Waskow and Shoshana Waskow a year-long stipend to do their first political work, support that I called the “J Edgar Hoover Memorial Fellowships.” (They both accepted: David to work for tenants’ rights in New England, Shoshana to work in a shelter for battered  women.)

If Justice Scalia stands this morning before the Heavenly Court, that case may be his one feather on the scale of justice to weigh whether he acted – as all our religious traditions demand -- on behalf of the oppressed.

For all the rest --  He upheld the power of the ultra-rich to flood elections with their money; the power of racist state governments to undermine the voting rights of Blacks, Hispanics, the poor, the young, and the old; the power of homophobic state governments to prevent same-sex marriages; the power of the US Government to imprison people in Guantanamo for years with no trial and no right to habeas corpus; the power of a corporation to invoke its own “religious freedom” (can a corporation pray? or take Communion?) to thwart the actual religious freedom of its flesh-and-blood women workers to freely choose insurance coverage for their use of contraceptives; and most recently, just days ago, the power of King Coal to continue committing arson against our Mother Earth and her vulnerable human communities.

Partly because of Judge Scalia's unexpected vote, our COINTELPRO case became a chapter in a book on the Bill of Rights by Caroline Kennedy and  Ellen Alderman, In Our Defense. For my own story of the case and its effect on me, see <

Last night and this morning, after Judge Scalia’s death, a true Constitutional Conservative would have said:

 “The Constitution defines the President’s term in office as four years, not three. So of course President Obama should nominate a candidate for the Supreme Court. And as also provided in the Constitution, of course the whole Senate should decide whether to confirm that nominee.”

It is shameful that some leaders of the Senate and some candidates for President who claim to be “conservatives” took exactly the opposite position. Shameful, but not surprising.

What now? Since the filibuster still applies to Senate debates on nominations to the Supreme Court, we should note that it only takes 41 Senators to prevent confirmation. Unless after the elections this fall there is a majority of Senators ready to change the rules, that will apply then as well as now  -- and to any nominee of the next President, of whatever party and belief. 

We might be in for a long period of 4-4 deadlocks on the Supreme Court. If so, that will mean decisions by the various Courts of Appeals will be upheld by default. (In the recent King Coal case, that would have dethroned the murderous monarch.)

Or to prevent a nightmare of conflicting Appeals decisions enshrining different law in different regions of the US, perhaps the wavery Justice – Kennedy—will cross over to make up a mildly liberal majority, more attuned to the rights of the people and the healing of Mother Earth.

In any case, I hope that President Obama will nominate precisely a strong defender of the rights of the people and the life of Mother Earth, rather than trying to compromise by naming someone acceptable to the Tea Party extremists. Better a 4-4 deadlock than that.

Perhaps a wise, creative, and unconventional choice might be former Govrnoor & former EPA head Christie Todd Whitman Though a Republican, she is maverick enough to strongly support campaign finance reform and to take the climate crisis seriously. Perhaps she would attract support from enough of Republican Senators to tip the balance.

Probably not,  but then she might move enough of the voting public to matter in the next election, when the Supreme  Court should be a major issue..







Scalia, for the most part,

<p>Scalia, for the most part, bent the law his way. He was a harmful prescience on the Supreme Court. I hope President Obama will stand strong for US, the people of the United States of America. We the people need a person on the high court who knows what is just and that the Constitution was meant to be a "living , breathing document." We must remain a nation of laws, not of men.</p>

Replacement for Scalia?

With all due respect, Christine Todd Whitman is not even a lawyer. How could she possibly qualify to serve as a justice on SCOTUS? I agree with your criticisms of Scalia.

Scalia's replacement

<p>The good news I just heard is that 9 of the 13 appellate courts are dominated by democratic appointees so most of the court judgements will be of a more liberal flavor. Yes, there could be conflictual rulings from the more conservative courts. Looks to me like we will have to live with that until, very likely, a new democratic president is elected.</p>

Your suggestion no doubt

<p>Your suggestion no doubt makes you feel good, but since the Senate would strike down a candidate such as you would like, it is pointless.</p>

Would ex-Sen Snowe be confirmable?

First of all, Dear folks, There is a problem with what I originally wrote. It was Maine Sen. Snowe who stood strong with Feingold on campaign finance reform; but it was  Maine Sen. Collins, not Snowe, who co-sponsored tformer he carbon-fee-and-dividend bill. But on a number of other issues,  Sen. Collins has not been nearly as good as Snowe. If you mixed the best of them together into one Maine Senator, you’d get a  quite good Justice. If you mixed the worst of them together, a pretty bad Justice. So I’m writing to say I made a mistake on that.  Sorry.

No Democratic and probably no decent Republican nominee  will be confirmed by this Senate,  and as I suggested, the best we would get then would be a good campaign issue that  would have a much stronger appeal to “moderate” Republicans if the Senate had rejected a Republican than if it had rejected a Democrat. What  Republican might be powerfully attractive to Republican voters? Former Gov & former EPA head Christie Todd Whitman?

About confirmability of anyone: There are 44 Democrats in the present Senate and 2 pro-Dem Independents. If they stuck together, as i think they would, it would take 4 Republcan Senators (out of 54) to make a 50-50 tie to be broken by VP Biden to confirm a moderate Rpublican.  It would take 14 to break a filibuster by the Tea Partiers. Much much harder. But the specacle of the Senate rejecting an eminent Republican might well have  a major effect on the presidential campaign,  especially on Republicans in "blue" states. --  Rabbi Arthur Waskow

Supreme Court Appointment

<p>I agree that Olympia Snow would be a terrific Appointment. Inasmuch as the latest Supreme Court decisions have been to overturn lower court decisions, maybe a 4-4 vote is the best we can do for now.</p>

Replacing scalia

Obama can try to find a compromise candidate that might be acceptable to a super majority of a dysfunctional senate which has a majority committed to blocking anything he suggests.

Obama can nominate someone who will be acceptable to the extreme right.

Perhaps the only realistic strategy is to make the fight over the Supreme Court part of the campaign to elect a Democrat in November. Obama should nominate a progressive and make the Republicans' obstruction a campaign issue. Risky. Yes. But this is probably the least risky option.

A new justice could create more justice

<p>I love that your essay is nuanced as justice itself can sometimes be nuanced. I do think this storm will blow over or we will be sheltered from it. Barack Obama has been served up unspeakable indignities as president; he has been insulted and ignored beyond anything that has occurred in recent history. We have so many haters out there. But justice has been served. He will as President get to appoint one more Supreme Court Justice. He will I expect think of those not served by our current courts, or legislators: immigrants, children with too little to eat, victims of bank malfeasance, police malfeasance, perhaps even military malfesance. He will through this appointment be able to speak to the palpable neglect by our government of its neediest citizens. Let's step back from the political process and realize that within the laws of our land, justice can be done when we all care more about it.</p>

Replacing Scalia

This difficult situation has caused me to do some research about the ability of the president to make recess appointments. These appointments are a way for the president to get around the use of filibusters and pro-forma moves by the Senate (used to avoid the calling of a "recess" even when the Senate is clearly not in session). Any recess appointment would only be good until the next president takes office. Several Supreme Court justices have actually been installed using that process by previous presidents. But in researching the Supreme Court decision in 2014 about the right of the president to circumvent a Senate filibuster, I see that this Supreme Court, while allowing him to make recess appointments for other jobs, has actually hamstrung the president when it comes to the Supreme Court. He is specifically forbidden from nominating a Supreme Court Justice using this process. That decision slipped by me; perhaps I am not the only one. This whole thing is a real mess. That a Senate wWould totally block a sitting president from making any appointments whatsoever during his presidency, on entirely partisan grounds, is outrageous behavior in the first place. Filibusters should be a last defense to call public attention to a grievous situation. And that should alert the Congress to come to a better compromise decision. But this president has been subjected to an outright vendetta by the Republican members of Congress, based on nothing more than the fact of who he is. He has been basically disabled from performing his legally mandated duties. It is not enough to support a 2016 presidential campaign based on overhauling the system. There has to be something the public can do to force the Congress to let the sitting president function. We have let this behavior go unchallenged for too long. And now we are faced with a worst case scenario. Any ideas?

Scalia on Defendants' Rights

Arthur, I agree with most of what you say about Scalia, but the NY Times obituary has several paragraphs on his record of supporting defendants' rights in the 5th and 6th amendment (p. 21, bottom of 1st column). His judgment in your case was not an exceptional ruling for his subsequent career. But a great deal of his record is harmful to American constitutionality, in my opinion. Especially DC v. Heller, the gun case, where he completely ignored the "originalism" of the phrase "A well-regulated militia being necessary...."

Christie Todd Whitman

Prior to 9/11 I would have agreed with you now as an ex pat New Yorker whose heart is still in the Bronx she has soiled herself by the lies she, Bush and Guliani told regarding the safety of the World Trade Center site. The memory of First Responder who died from cancer should not be insulted by honoring her.

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