Patterico's Pontifications

4/24/2008

Programming Note: Scalia on 60 Minutes

Filed under: Judiciary,Law — DRJ @ 10:18 pm



[Guest post by DRJ]

Justice Scalia will be interviewed on 60 Minutes Sunday night and, judging by these excerpts, it should be entertaining:

“People who believe the U.S. Supreme Court’s decision giving the 2000 presidential election to George W. Bush was politically motivated should just get over it, says Justice Antonin Scalia.

Scalia denies that the controversial decision was political and discusses other aspects of his public and private life in a remarkably candid interview with 60 Minutes correspondent Lesley Stahl, this Sunday, April 27, at 7 p.m. ET/PT.

“I say nonsense,” Scalia responds to Stahl’s observation that people say the Supreme Court’s decision in Gore v. Bush was based on politics and not justice. “Get over it. It’s so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two,” he says, referring to the Supreme Court’s decision that the Supreme Court of Florida’s method for recounting ballots was unconstitutional.

Furthermore, says the outspoken conservative justice, it was Al Gore who ultimately put the issue into the courts. “It was Al Gore who made it a judicial question…. We didn’t go looking for trouble. It was he who said, ‘I want this to be decided by the courts,'” says Scalia. “What are we supposed to say — ‘Not important enough?'” he jokes.”

He had this to say about abortion:

“On the abortion thing, for example, if indeed I were…trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like to see adopted, which is to interpret the Constitution to mean that a state must prohibit abortion.” “And you’re against that?” asks Stahl. “Of course. There’s nothing [in the Constitution to support that view].”

The article closes with Scalia’s advice on how to be a Supreme Court judge:

“I attack ideas, I don’t attack people, and some very good people have some very bad ideas,” he tells Stahl. “And if you can’t separate the two, you got to get another day job. You don’t want to be a judge, at least not a judge on a multi-member panel.”

That’s good advice for everyone.

— DRJ

51 Responses to “Programming Note: Scalia on 60 Minutes”

  1. Hasnt AL GORE gotten over being unable to steal the 2000 election? SCREWBALL LIBERAL LOSERS

    krazy kagu (37862d)

  2. Of course the Supremes did not steal the election. How ridiculous! That was the eevil Diebold villains, of course! Then the mischievous Dubya blew up the WTC and caused hurricane Katrina.

    Freedom Fan (aa7dcf)

  3. “The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two,””

    Didnt they also try to write in there limiting the ruling? That was a nice touch to make it look less like politics.

    stef (394243)

  4. I attack ideas, I don’t attack people, and some very good people have some very bad ideas,” he tells Stahl. “And if you can’t separate the two, you got to get another day job.

    Unfortunately, more and more, political disagreements are becoming personal. It’s not enough to disagree and leave it at that. Dialogue is nastier and more vitriolic than before the internet age.

    aunursa (938f66)

  5. That was a nice touch to make it look less like politics

    Simply declaring that to be so does not make it so, alphie. Following the law is political? Who knew?

    JD (75f5c3)

  6. I remember the Florida issue as one where Democrat party hacks were going to cherry pick where they needed to recount votes to push Gore over Bush. I remember seeing video of people holding ballots up in the air and squinting to determine whether a chad hung or whatever. It seemed a very subjective process.

    They were going to recount votes until they got the result they wanted.

    It got so bad that the Dems complained that the ballot was designed to confuse elderly people as if there was no other explanation for Bush getting more votes in areas where New Yorkers retire.

    Bottom line: All the Florida votes were counted and don’t belive otherwise.

    Alta Bob (934c6d)

  7. I see stef sunk to her BDS low here.

    I’m surprised Sore Loserman Levi isn’t here with his conspiracy ravings.

    One thing that gets over looked is that the “butterfly” ballot used in FL was the same ballot used in Cook County, IL (Chicago). If the dead in Chicago could get their votes straight, why can’t the dead in the head Democrats in FL?

    PCD (5c49b0)

  8. #6
    That butterfly ballot was designed by the democrats and the dem lady running things here got tons of grief over it. Some of those elderly NY transplants didn’t know you were not supposed to vote separately for President and Vice President…so they voted for Buchanan and a stink was raised because why would Jews vote for Buchanan anyway. I recall dems making a push to have elderly in nursing homes vote on absentee ballots. Want to bet how many voted for the goracle? And people here still bitch about the “stolen” election. Our so-called congressman Wexler has stirred the pot endlessly and even now would love to impeach Bush and Cheney. I still see cars with Gore-Lieberman bumper stickers.
    And of course Katherine Harris is vilified for certifying the election results.
    And how many times did lib papers like Miami Herald and NY Times recount and have Bush still come up the winner? Then you had Fla. Supreme court throwing out decisions made by lower courts with actual dem judges that had some integrity.
    Since then we have a whole new process and the old machines discarded. The local level of gummint here is quite often a joke, but wonder why there was never much focus on much more egregious voting irregularities in places like Chicago and Milwaukee? Couldn’t be because of big liberal machine politics controlling, eh?
    Scalia and Thomas are fabulous and I expect Roberts and Alito will do great also.

    madmax333 (36c55d)

  9. Scalia’s got to stop saying “Get over it.” I saw the clip from CNN and I’ve got to say, if I weren’t already a fan of his, I’d think that politics was behind the Bush v. Gore decision. Scalia has been consistently horrible at defending that decision, which is a shame, because the decision was actually correct. (I don’t agree with the majority’s equal-protection rationale, but I do agree with the Article II, section 1, clause 2 rationale put forth by Rehnquist, Scalia, and Thomas.)

    Alan (7ef409)

  10. Didnt they also try to write in there limiting the ruling? That was a nice touch to make it look less like politics.

    Did you read the decision, or just the Sore/Loserman talking points?

    Xrlq (b71926)

  11. My own opinion is that SCOTUS did the correct thing, but not necessarily on legal grounds. Somebody had to step in and tell the children they were being a bunch of brats, and put an end to the squabble. No one else was in a position to do it, so SCOTUS stepped up to the plate and acted like a group of grown ups.

    But while it was necessary, it was not, in terms of the Constitution, the legally correct thing to do. The Constitution does provide a forum to decide these disputes, and provides it in great detail: it’s supposed to be Congress, at the time the electoral votes are officially counted.

    kishnevi (96c457)

  12. Regarding the constitutional analysis, Kishnevi at 11 is correct.
    I think the only justice to discuss this in the many opinions was Souter, but its been a while and I could be wrong.

    So Kishnevi (or anyone else)–since the constitution in fact does provide the proper dispute resolution method, why did the court have to step in? (It didn’t change the end result–in that Congress, Bush would have won no question.) I think the Supremes should have not taken the case, letting Florida state government reach whatever resolution it was going to reach, and then let Congress decide whether to accept what Florida sent them. I thought that was the point of Congress being the ones who receive, certify, and count the electoral votes–they decide whether a slate was properly submitted, and their decision (unlike supreme court decisions) is accountable to the voters.

    I don’t think I’ve ever heard a satisfactory response to this, but I’d love to hear what others think.

    VR (e7fe82)

  13. And what if (don’t you just love that phrase) Gore had then appealed the action of Congress to SCOTUS, all the while the msm is cheering him on?
    And SCOTUS declines to review under the seperation of powers rule?
    The libs would have gone crazy – as if that would change anything now, or in the interveening years.

    Another Drew (f9dd2c)

  14. VR – When was the last time that Congress stepped up and made a tough decision? 😉

    JD (75f5c3)

  15. Another Drew at 13–
    Not sure if you’re agreeing with me or not–so hard to see which way the snark is pointed sometimes . . .

    But, as one of the “libs” (I agreed with some of Groe’s Florida actions and positions, disagreed with others, am a liberal generally)–it would have been nice to have the court stay out, and the democratic process (i.e. Congress) sort it out–I would assume that’s why the ocunting of electoral votes, and their reception and certification, is a duty given to congress.

    Many conservatives complain (with some justification) that when contentious issues are dealt with by supreme court fiat, it deprives the country of the closure that would come from a resolution in the democratic branches. I think the same applies here.

    (and before anyone argues that Gore went to court first–the problem with that argument is that Florida law at the time, and as passed by the Florida legislature, contemplated exactly that role for the Florida courts. Elections in Florida had been contested that way before Gore ever got there. I think that is a good argument for Congress exercising more supervision over federal election procedures, but as it stood then, Florida had the right and duty, under Florida law, to conduct its presidential election however it wanted to, and Congress would decide later if those procedures were good enough.)

    (so, for the record, I was unconvinced by the argument in Rehnquist/Scalia/Thomas’ concurrence that essentially amounted to the Supreme Court trying to re-write and re-interpret state law. I was convinced that there was an equal protection problem, but even granting that, it was for Congress to decide.)

    VR (e7fe82)

  16. JD at 14–

    excellent point. Unfortunately, the only way to fix that is to dump the tough decisions on to their porch and not take them away.

    VR (e7fe82)

  17. “Did you read the decision, or just the Sore/Loserman talking points?”

    here we go:

    “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

    Nice touch. Makes it less political that the equal protection arguments don’t reach things like disparities in voting technology, because of all of the complexities.

    Can one of you experts tell us who wrote that? And under what circumstances would a supreme court “consideration” NOT be “limited to present circumstances”?

    stef (5e1d16)

  18. #11 – Likewise SCOTUS got it right but for the wrong reason. As a plaintiff, Gore had very right to contest the results of the election under the then existing florida statutes. As plaintiff, he had the burden of proof that “would put the results of the election in doubt” However, he only presented one witness, who provided virtually no evidence that would put the election in doubt. ( not that evidence did not exist, but only that the witness did not provide that evidence). Even if gore’s legal arguments were correct, and even if there was insurmountable evidence in his favor, because, he failed to meet the burden of proof during the evidenciary phase of the trial, then he should not have won the case.

    Joe - Dallas (d29492)

  19. One of the most common ways to create dimpled and hanging chads is to try to punch through multiple chads at the same time

    Joe - Dallas (d29492)

  20. The effort to flip the results in Florida died the day the country saw what was going on in (from memory) Dade County. Election officials holding ballots up to the light trying to detect microscopic holes signifying voter intent was never going to fly. Even Jimmah couldn’t have ratified that vote with a straight face.

    Sweetie (2fd7f7)

  21. I was with you right up to this point –

    which essentially amounted to the Supreme Court trying to re-write and re-interpret state law

    Even if one is to accept that assertion as being the case, the Supremes got involved because the Florida State Supreme Court absolutely changed the rules and re-wrote the law midstream.

    VR – I look forward to the day when Congress is willing to address tough questions. But, given the clowns that are there now, maybe it is better that they do not.

    JD (75f5c3)

  22. Ultimately, Florida was a simple toss up. Voter intent as expressed by clearly marked ballots was a statistical tie. The coin flip came up Bush. The Dems poked at the coin with a stick trying to flip it, almost got it on it’s side, but it fell back with Bush on top.

    Nixon, in 1960, looked at two coins with Kennedy’s face, in Texas and Illinois, and put the stick down. Some things are more important than crony jobs and personal power.

    Sweetie (2fd7f7)

  23. I agree with Scalia’s position on abortion. I too, am against it on moral grounds. But, legally, it’s not in the Constitution unless it is unconstitutionally legislated, for or against, by the bench. By Natural Law, it is not in the interest of a species to purposely kill its offspring. Morally, it does not create a kind regard for life. However, the Founding Fathers were aware of abortion. Jefferson gives a detailed account on the procedure used by the Indians in his, “Notes on Virginia”. I do believe that the Founders thought the issue of birth and abortion to be above the purview of the Constitution and is up there, somewhere, between the mother and her God.

    Norris (a359ba)

  24. JD at 20–

    As I remember (and I could be wrong), my understanding of the relevant Florida election law was that those kinds of interventions by the Florida courts were legal–that they had specifically delegated supervisory authority over elections in some way. But it has been a while, and I could be wrong–am not willing right now to do the work to check on it.

    If what I remember is correct, though, then the concurrence of Rehnquist et al was an attempt to re-write state law by trying to determine whether the courts were interpreting the legislative acts properly–when, as I understood it, the legislature had delegated great power to the courts in FL to act in a supervisory capacity. (In essence they, the justices in the concurrence, were applying a separation-of-powers argument that would be true for the federal government but incorrect for Florida, under Florida law.)

    But, since my memory is a bit fuzzy, maybe I should hold off unless/until I can re-do the reading necessary to be sure . . .

    VR (e7fe82)

  25. VR #15 – No one’s arguing that Elections in Florida had been contested that way before Gore ever got there.

    That’s not what Scalia said. He said “It was Al Gore who made it a judicial question…. We didn’t go looking for trouble. It was he who said, ‘I want this to be decided by the courts’,”

    Your post makes an assertion that, without Gore’s petitioning of the courts, the matter would have been handled that anyway, and that’s simply not true.

    Apogee (366e8b)

  26. Arrgh. – the matter would have been handled by the courts regardless of Gore filing a petition.

    Apogee (366e8b)

  27. Apogee at 24 & 25,
    There’s no “the courts.” There are the Florida courts, and the Federal courts, and the US Supreme Court, and different laws and considerations govern them. It’s not one unified system, but rather several separate (although overlapping) systems.

    So the fact that Gore took his case to the Florida courts, which was apparently customary for Florida elections, does not mean that the US Supreme Court had to get involved. They had no obligation to take the case, and given that the constitution prescribed a remedy already (through Congress) there is a good argument that the Supremes should have stayed out–its a political question, with a political remedy. If the constitution lays out that congress decides whether a state’s electoral votes are valid, why should the Supreme Court have taken the case?

    VR (e7fe82)

  28. looks like the spam filter caught my comment

    stef (b7ee98)

  29. Prolly due to it being spammish …

    JD (75f5c3)

  30. VR – Note, I do not question whether or not the FL courts had the right to be involved. All I noted was that they changed the rules of the game after people had voted. Nobody questions whether they had a supervisory role. However, they gave themselves a role where they changed the existing rules, or made new rules. That is way beyond supervisory.

    JD (75f5c3)

  31. JD – so now you don’t like spammish people? You are a racist.

    Apogee (366e8b)

  32. VR – But Gore’s not Floridian. And you’re contradicting your own argument, which is that given that the constitution prescribed a remedy already (through Congress) there is a good argument that the Supremes should have stayed out.

    So you agree with the Supremes – that the Florida courts overstepped their bounds.

    I also agree with Scalia on his “what were we supposed to say? Not important enough?”

    Apogee (366e8b)

  33. There it is at #17. I’d really like someone with knowledge to weigh in on this:

    “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

    Under what circumstances would a supreme court “consideration” NOT be “limited to present circumstances”? Do they say this sort of stuff all the time? What’s the effect here?

    stef (e78d9c)

  34. Apogee – Don’t forget a bigot, a homophobe, and a sexist too.

    JD (75f5c3)

  35. VR – And I also have a problem with the notion that the Florida courts have a precedent for deciding elections.

    Florida courts deciding Florida elections is one thing, Florida courts deciding National elections is quite another thing, and that is the larger question at play here. It’s not as though the Supremes jumped in to decide who would be the Broward County Sheriff.

    Apogee (366e8b)

  36. JD – Yeah, but those are just hobbies.

    Apogee (366e8b)

  37. Apogee at 32 and 34–
    No I do not agree with the Supremes–Florida has the right to determine how its electors are selected, under Florida law. There is no federal or constitutional requirement that there even be an election–Florida could choose to let the legislature pick the electoral voters.

    SO, Florida determines how their electors are selected–and when I say “Florida” I’m including the Florida courts, who are playing the role that Florida law set out for them. If the US Congress did not like what Florida did, the US Congress can reject a state’s electoral votes for any reason.

    Like it or not (I don’t) right now, the states have the right and duty to run federal presidential elections. So Florida has the right to set up asinine procedures with lots of judicial meddling from Florida courts.

    You are conflating the roles of the Florida courts with the Supreme Court. My point is that Florida law contemplated the Florida courts doing exactly what they did, and that the constitution assigned Congress the right to accept or reject it.

    So, again, why should the US Supreme Court get involved?

    VR (e7fe82)

  38. Florida has the right to determine how its electors are selected, under Florida law. The FL court does not have the right to re-write the law after the votes have been cast.

    My point is that Florida law contemplated the Florida courts doing exactly what they did

    They anticipated the FL courts to ignore specific dates, and to change standards midstream?

    JD (75f5c3)

  39. If the Florida Supreme Court was violating the Constitution–which it was–I don’t see why the Court should turn a blind eye just because someone else has the power to remedy the problem. We’re talking about the supreme law of the land here. What the Florida Supreme Court did was a blatant violation of that law. The Supreme Court stand idly by, based on speculation that someone else is going to clean up the mess the Florida Court made. The Court’s most important function is to stop unconstitutional things from happening, and with a mission that important, I think diligence is the proper attitude to take–not this passive “Why-can’t-somebody-else-fix-the-problem?” approach.

    Article II, section 1, clause 2 of the U.S. Constitution provides that every state’s electoral votes must be handed out in such manner as the state legislature shall direct. Because the Florida courts were twisting Florida election law like a pretzel, a federal constitutional violation arose. To take one example, Florida election law expressly provided that only error in vote tabulation would authorize the canvassing board to order a countywide manual recount. The Florida Supreme Court interpreted this to allow recounts where there was no error in vote tabulation, but only voter error in casting the ballots improperly, leading the tabulating machines to reject the screwed-up ballots. The machines did not commit error; they did what they were programmed to do. (As Richard Posner put it, “If you put a steel bar into a meat grinder and hamburger mean doesn’t come out, do you call this an error by the meat grinder?”)

    The Florida Court misrepresented the law–in violation of the federal Constitution–in order to steal the election for Al Gore. The U.S. Supreme Court did the right thing by stepping in.

    Alan (7ef409)

  40. Just for the record. A frequently overlooked point of Florida’s Constitution is that the Florida Supreme Court is not the final authority on elections. Both branches of the Legislature, sitting in joint session, have that responsibility. Can you imaging the sight of the seven Florida Supremes standing in the well of the house having to answer questions about their authority and having to identify the sections of Florida Election Law that they used to reach their first decision.

    longwalker (d671ab)

  41. VR – You agree that there’s some overlap between court systems. You agree that the Supreme Court is capable of overriding decisions made in either State or Federal courts.

    Why should the Supreme Court get involved?

    They were asked. And they agreed. As for the notion that only congressional rejection of the state’s electoral votes is an appropriate course of action, I disagree. We would then be hearing endless bitching about disenfranchisement of an entire state, along with the requisite conspiracy theories.

    What everyone complaining about the 2000 election seems to forget is that the votes were counted the following year by a collection of right wing organizations, like the NY Times and LA Times, and it was discovered that Bush did take Florida (whether the votes were counted using the FL SC’s ruling, Gore’s method, or SCOTUS’s ruling). All these complaints as though some great travesty of justice has taken place, along with calls to remove the electoral college, are just ridiculous given the evidence that things actually went as they would have had everyone had their way. As to the idea that the election was stolen. It’s hard to get more ignorant than that.

    Apogee (366e8b)

  42. Alan @ 38…
    Well said.

    longwalker @ 39…
    It would have been the comic sight of the decade. The usual grand-standing legislators quizzing activist justices as to where in the law enacted by the peoples’ representatives they could find the authority to usurp FL law?, and why they shouldn’t be impeached?

    I wonder what Wexler would say about that scene?

    Another Drew (f9dd2c)

  43. Alan at 38
    The whole point of the “political question” doctrine is to keep the courts out of cases that can better be handled by the political process. This is a doctrine the Supremes have applied in many cases, and I think it applied here. Furthermore, I don’t think the florida courts were using power they did not have–the Florida laws, as I remember them, explicitly gave them that power. So I disagree with the Art. 2 Sec. 1 argument. (I do think there was a potential equal protection violation.)

    Apogee at 40–
    yes, they were asked. They get asked to take lots of cases, and they turn 99% of them down. There are very few cases the Court is required to take, and this was not one of them. So the decision to take the case at all is what I’m criticizing.

    As far as your point about “Bush won anyway”–yes, I’m aware of that. I’m more concerned about the precedent and the legal reasoning behind it. If I’d had my way, as I said before, Congress would have decided, and Bush would have won there regardless.

    As far as hearing endless bitching about Congress’ handling this, well, we’re hearing endless bitching about the Supremes. Difference is, people can vote against congresspeople, which is the whole point–this whole dispute was ultimately political, and therefore the political branch of the federal government should have handled it.

    VR (2f7026)

  44. People can also vote for Presidents, and it is they who make appointments to SCOTUS, which is why this particular case was weighed important by SCOTUS.
    Which, for me, explains Scalia’s quote on the decision: “What are we supposed to say — ‘Not important enough?’”

    Apogee (366e8b)

  45. longwalker – Are you suggesting that it is a little known fact that the Florida Supreme Court is not the highest body in the state for interpreting state law in the case of election related matters? You are suggesting that the Florida legislature actually self regulates itself on such matters and can pass matters in violation of the Florida constitution?

    daleyrocks (906622)

  46. don’t think the florida courts were using power they did not have–the Florida laws, as I remember them, explicitly gave them that power.

    Then you remember wrong, VR.

    JD (cc8862)

  47. They had the power to review the laws and rules. They chose to change the laws and rules to fit their desired outcome. Not quite the same thing.

    JD (cc8862)

  48. VR–and pray tell, which laws would those be, that explicitly gave them that power?

    VR is just making stuff up. It’s as simple as that.

    Alan (7ef409)

  49. Alan and JD – I agree, which is why the U.S. Supremes smacked down the Florida Supremes big time.

    daleyrocks (906622)

  50. “Did you read the decision, or just the Sore/Loserman talking points?”

    here we go:

    “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

    And your objection is … what, exactly? Perhaps that they didn’t write something like this instead:

    “Our consideration is limited … aw, hell, who cares what facts we have or haven’t considered in this case. Complexities, schmomplexities, let’s have the lower courts take this case and run with it!

    Xrlq (62cad4)

  51. “And your objection is … what, exactly?”

    What I’d like to know is what effect that has. Why write it?

    stef (1d0ada)


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