Friday, October 27, 2006

A Final Word on Justice Scalia...

Excerpts from a piece by:
Published: February 16, 1987

(Note: Stuart Taylor has written columns for The National Journal, a socially conservative publication, as well as Newsweek. You may wish to keep the irony of this in mind when reading excerpts from the following article.)

from Taylor's "Scalia Proposes Major Overhaul of U.S. Courts," NYT, 2/16/87...

"Associate Justice Antonin Scalia of the Supreme Court said today that the Federal judiciary was being transformed from an 'elite' into a vast bureaucracy by a flood of routine cases, and called for a major overhaul."He urged relegating large categories of cases like routine Social Security disability claims and Freedom of Information Act suits to specialized tribunals, to reverse what he termed the ''continuing deterioration'' in the prestige of the Federal district and appellate courts and the quality of the lawyers interested in serving on them 'A Natural Aristocracy'

"The time is well past due'"for action if '"a system of elite Federal courts'" is to be retained, Justice Scalia told a luncheon audience at the American Bar Association convention here. He said the framers of the Constitution saw the Federal judiciary as a "'natural aristocracy, in their words, of ability rather than wealth.'"

In his first major speech since he joined the Supreme Court in September, the 50-year-old Justice asserted it was inevitable that Federal district and appellate courts will stop attracting "the cream of the profession" unless action is taken to limit their caseloads and their need to decide routine personal injury and employment disputes and other cases they consider 'trivial.'"Justice Scalia said...he aspired to become a Federal judge because Federal courts were 'forums for the big case. An elite group of practitioners' argued before judges viewed as 'great minds' who enjoyed prestige unequaled by judges in other nations, he said. 'A Judge, Not a Processor."

Since 1960, he said, the Federal courts have been transformed by an explosion of Federal rights on which lawsuits could be brought,'"ome created by Congress, some by the courts.'"He said that since 1960 the number of Federal civil suits filed each year has more than quadrupled, from 58,000 to more than 250,000, and the number of appeals has multiplied ninefold, from 3,900 to 35,000. "

Oh, and here's another excerpt, this time from an interview Amy Goodman did with Stuart Taylor, Jr. on Oct. 27, 2004, right before the presidential election, that's bound to give you goosebumps as it did me...

"AMY GOODMAN: I'm Amy Goodman, as we continue with Stuart Taylor. He has written the piece called "The A List" with The National Journal. You go through the list of possible Kerry picks, possible Bush picks for the Supreme Court. One of the issues that's been raised is that when it comes to someone like Antonin Scalia, a fiercely conservative Justice, that the democrats joined with the republicans in supporting them, John Kerry was included in that when he was appointed to the Supreme Court in confirmation. What's your response to that, Stuart Taylor?

STUART TAYLOR, JR.: My response is that that happened for reasons that seem a long time ago and it's not likely to happen again. Part of it could happen again. One thing that Justice Scalia had going for him was that Chief Justice Rehnquist, then Justice Rehnquist, was running interference. The two were nominated simultaneously when Chief Justice Warren Burger stepped down. The president nominated Rehnquist, who was then a Justice to step up to Chief Justice, and Scalia, a lower court judge, to fill the Rehnquist vacancy. The liberal opponents focused their attacks on Rehnquist because of the visibility of the Chief Justice position and because of his very conservative record during his years on the court as -- and other issues, and Scalia was something of a beneficiary of that. I think that liberals sort of used up their energy, and what they thought was the public's patience in their attacks on Rehnquist, also the fact that Scalia was the first Italian Justice got him some credit and he's a very gregarious and charming man, that got him some credit. And I think it was probably not quite as apparent then as it is now how conservative he would prove to be, although he was pretty clearly pretty conservative. The one parallel that I could see this time is if there is a nominee for Chief Justice from within the court who draws substantial opposition from the other party, then whoever is sort of second in line to fill that nominee's seat might benefit to the same -- in sort of in the same way that Scalia did, but I think the confirmation battles have become much more bitter. The polarization on the court and in the country has become more extreme, and now democrats in the last four years have set a precedent for Senate filibusters of controversial nominees, which basically means that you no long need just 50 votes to get confirmed -- or 51, I should say -- you need 60 to break a filibuster, and that could make it difficult for any controversial nominee to get through.

AMY GOODMAN: Finally, Stuart Taylor, the issue of what happened in 2000, the issue of the race being thrown -- the race for president being thrown to the Supreme Court. Do you see any scenario where that could happen again?

STUART TAYLOR, JR.: It could happen for sure, and it could happen in a number of different states. Basically, the 2000 litigation set another kind of precedent, which is the idea that maybe some court will decide who won the presidential election rather than the usual process. That had never happened before, and even if the Supreme Court had decided Bush versus Gore the other way, I think that that precedent would have the same effect. So, both parties are geared up with thousands of lawyers all over the country, already bringing lawsuits about all sorts of things, voter registration procedures, provisional voting procedures. And basically, if the national electoral vote turns out to be close, and there are some states that are close enough so that if you swing one or two of them or three of them away from where it seems to be heading through lawsuits, there will be lawsuits and it's -- there are a huge number of variables, but sort of a -- I see a very substantial possibility, maybe not a probability, that once again we won't know who the president's going to be until sometime after election day."

Importantly, members of both parties in Congress supported Antonin Scalia's appointment to the Supreme Court!