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Can we impeach Scalia now?

Author:   Matt Deatherage  
Posted: 6/20/02; 4:00:10 PM
Topic: Can we impeach Scalia now?
Msg #: 292 (top msg in thread)
Prev/Next: 291/293
Reads: 6270

In today's 6-3 ruling, the Supreme Court said it's cruel and unusual punishment, and therefore unconstitutional, to execute mentally retarted people. Naturally, the John Birch Three (Scalia, Thomas, and Rehnquist) dissented (these three never met an execution they didn't like), but Scalia's own dissent reveals just how far the man has thrown out his allegedly-cherished belief in consistency.

The majority found that an increasing number of state laws bar such executions, as would a majority of citizens, and that (of course) helps define "cruelty," a relative word. Scalia, on the other hand, wrote (I swear I am not making this up):

Seldom has an opinion of this court rested so obviously upon nothing but the personal beliefs of its members.

This is the same man who, in November 2000, issued a press release explaining he was stopping the recount of votes in Florida because it might give the appearance that a Bush presidency was illegitimate. This is the same man who repeatedly invents rights for states to ignore the federal government (most recently ruling that states do not have to obey EPA regulations about toxic sites), but who completely ignored Florida's clear voting law and Florida's state supreme court to make sure the man he wanted got the presidency.

And he has the nerve to complain that his six colleagues, who look at national standards to decide what is "cruel", are basing opinions on their personal beliefs???

Elsewhere in the opinion, Scalia bitched about "the 47 percent consensus," saying that 18 states barring these executions represetnt less than half of the 38 states that permit capital punishment:

If one is to say as the court does today that ALL executions of the mentally retarded are so morally repugnant as to violate our national standards of decency, surely the consensus it points to must be one that has set its righteous face against ALL such executions.

Less than a majority of the popular vote was not only enough for him to appoint his candidate president, it was enough to stop counting legitimate votes lest anyone see what he was doing.

Rehnquist's dissent omitted the word "respectfully," just as the minority who wanted to count votes in Florida did when the majority appointed Bush president. Rehnquist sneered that the majority puts too much stock in opinion polls and the views of national and international observers. But how else do you determine contemporary standards of cruelty? Oh, right -- Rehnquist wants to return to the days of public stocks, maggot-filled bread and water for meals, and open-ended imprisonment for debt. If it wasn't cruel in 1789, it's constitutional to Rehnquist.

But at least Rehnquist is being consistent -- as long as it doesn't affect him, it's OK. Scalia has become the darling of the academic right for allegedly holding the firm and fast viewpoint on what is and is not constitutional, but it's just not true. If it offends his grumpy politics, it's unconstitutional; if it doesn't, it's constitutional. To complain about a "minority" of citizens shaping policy and that a decision was based on nothing but "personal beliefs" when the most important ruling of his life was based on the same factors -- trumping everything he says he believes?

It's not Scalia's only recent consistency problem, either. Salon recently reported that Scalia has a problem with Ring v. Arizona. Scalia has repeatedly held, most strongly in Apprendi v. New Jersey, that judges can't use information obtained after a trial to increase a person's sentence. This is based on his belief that juries try and weigh facts, not judges, who are agents of the state and therefore not to be fully trusted with people's lives (ha!). "The founders of the American republic," he wrote, "were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights."

In Ring, the defendant (Timothy Ring) was convicted of felony murder for being the ringleader of a gang that robbed an armored car, even though the state could not place him at the scene of the murder. The jury split 6-6 on the issue of premeditation. After the conviction, in a separate sentencing hearing before the judge (and not the jury), one of the other robbers testified that Ring was there and was, in fact, the shooter. The judge used this evidence to sentence Ring to death, even though a jury never saw it.

Now Scalia can either maintain his belief that juries have to try facts that increase sentences -- one that's by no means new to him -- or he has to set it aside because it might keep someone from being executed. In fact, if the Supreme Court overturns Ring's death sentence, it could remove 800 or more people from death row around the country, in states where judges sentence to death separately from juries.

Scalia is so fond of executions, in fact, that this year he told suggested the Catholic judges who opposed the death penalty that they should resign. Scalia is Catholic, but apparently like Oklahoma governor Frank Keating, thinks the Pope's unconditional opposition to executions is somehow not authoritative or binding on him.

So how can he balance his love of executions with his belief in jury supremacy? He's trying to wiggle out of it -- during arguments in Ring, Scalia was trying to argue that the 1972 decision that split death sentences into a guilt phase and a sentencing phase "has no basis in common law." Therefore, in Scalia-world, however the sentencing is conducted is a procedural matter. In other words, juries have to approve facts that increase your punishment, but not facts that let you be executed. How's that for consistency?

It's obvious the man has no integrity left. Scalia is just trying to rewrite the constitution and the laws of the land from the security of his lifetime appointment, inventing rights he wished existed and ignoring the ones citizens have had for two hundred years. He claims to disdain judges who invent laws and rights, but he's done the same thing repeatedly -- but for states and companies, not for individuals. He says the state can't be trusted, but when it came time to trust Florida, he threw it all aside. And even his own belief in juries probably has to go if it means fewer people would be executed.

In fact, just today, Scalia dissented on Rush Prudential HMO v. Moran, showing his true colors once again. A five-person majority ruled that state laws allowing the states to help patients get second opinions when HMOs refuse them, and sometimes forcing the HMO to pay for care when an independent review finds care was unjustly denied, does not conflict with a 1974 federal law that covers most employee benefit programs. Scalia, who has no trouble inventing rights for states out of thin air, dissented, saying a law passed by Congress trumps state law. When it was about copyright or toxic waste, Scalia said exactly the opposite.

He's a despot, and thanks to Bush v. Gore, he's using his power to make sure he gets more power. Scalia, Rehnquist, and Thomas aren't enough to crush your rights, but George W. Bush has said Scalia is his model of the perfect Supreme Court justice. Thanks to his decision, he's done all he can to assure that more like him get to the bench. And while the Republican Senate repeatedly blocked even moderate Clinton judicial appointment, the Democratic-led Senate, not wanting the same roadblocks, is now poised to confirm over a dozen federal judges Scalia would be happy to invite to dinner.

It's unlikely anyone in Congress has the courage to recognize his hypocrisy and remove him from the bench, but one can always hope. Scalia never put much stock in what Al Gore said, but one of his quotes never rang truer: "It is time for him to go."

Update: For a May 2003 revisit of some of these issues, see Unjust executions, a news item that points to a great new Salon article.
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