Tuesday, April 22, 2008

Monday, April 14, 2008

Scalia Bobblehead a Real Hoot - but no longer available !!

The Greenbag: an Entertaining Journal of Law, a satrical law review for law review geeks, (i.e., an inside joke the rest of us aren't privy to) has finally issued the much-balyhooed Justice Scalia Bobblehead doll. (See annotated version, above.) Unfortunately, The Green Bag Editors makes it clear that no new subscribers can get the doll (or any of the other Justice Bobbleheads, for that matter). Here's the Editors' statement:

When you buy a subscription to The Green Bag, that is all you are buying – one copy of each issue of the journal for the duration of your order. Everything else we produce – books, pamphlets, recipes, toys, high and low art, and so on – is either a gift that may or may not be delivered to some or all of our subscribers . . .

Well, why the hell would anyone subscribe to that smug and sophomoric organ of pseudo-intellectual drivel? To get a friggin' Justice Bobblehead, of course! I'm not going to plop down $35 for the rag so that I might be included among "some or all" of the subscribers who "may or may not" get a Justice Bobblehead. And I would warn anyone viewing this blog to avoid subscribing - at least if or when The Green Bag changes its Justice Bobblehead subscription policy.

Admittedly, though, the J. Scalia doll is most excellent. Yes, Green Baggers, I'm through venting- you guys do have a sophisticated sense of humor. (Even if my fourth-tier law school educated mind misses the subtlety of some of your gags.) The bibelots that accompany the Scalia doll (e.g., the lemon, the wolf, etc.) are very clever, and symbolize the best of Scalia's opinions (read the annotations, above). My friend & fellow law librarian Uwe Beltz scored one. It now decorates his library desk. If piccolo Nino goes missing from Uwe's desk, this blogger will be numero uno on the most wanted list.

Saturday, April 05, 2008

Alito Tries to "Distance Himself" from Scalia.

OK, I want this blog to contain thoughtful analysis and discussion of U.S. Constitutional law ala Scalia. So, I should be avoiding the vacuous crap served up by the mainstream media about U.S. Supreme Court Justice nominees. But that's why blogging is great - you have complete freedom to write what you want (provided, of course, the statements are non-libelous). And well, sometimes you just want to read People magazine rather than Yale Law and Policy Review. Mental masturbation instead of cerebral crunches. (That sounds sick!)

Anyway, this brain candy about Judge Alito from American Lawyer Media's Law.com news service (copy the rss feed here) titled, "Seeking a Degree of Separation from Scalia," is actually pretty substantive. Interestingly, the article notes, Judge Alito did not name Justice Scalia as his favorite Supreme Court justice of all time. Alito chose Justice William Brennan as his favorite. Yeah, right! Could you be more subtle with the spin - choose a moderate like Justice Harlan II or Powell, not Mr. Living Constitution himself! Do you think Senators Schumer and Kennedy really believe you!?

But at least the article mentions that Alito and Scalia share the same birthplace, ethnic heritage, and religion (as discussed in my prior post). That puts "Seeking a Degree" on a higher plane than the Entertainment Tonight-like pablum coughed up by the mainstream mass media.
Yes, I know, that sounds cynical. And I shouldn't talk, since I'm as guilty as anyone for licking up whatever is currently hyped in the media. But I will earnestly try to improve my postings with heftier content. It's just my brain hurts today!

Sunday, March 30, 2008

Enough Scalito, Already! Alito is no Scalia!

This blogger has had enough of Judge Samuel Alito, Jr., (the President's recent nominee to fill the Associate Justice position vacated by retiring Justice O'Connor) being referred to as Scalito. Most articles don't even mention that Alito and Justice Scalia share a common birthplace (Trenton, N.J.), ethnic heritage (Italian) and religion (Roman Catholic). (See, e.g., this article from Cnn.com.) That might be reason enough for the Scalito moniker. But most new stories focus on Judge Alito's political conservatism. The parade of horrors of a majority "conservative" Supreme Court sells papers. I think the term Scalito should be reserved for a food item test marketed by Taco Bell in California, which I learned about from this definition posted on Urban Dictionary.com.

Tuesday, November 01, 2005

Thanks Mercer 1L Section 5! Ninowatch is Up & Running: Great Scalia Article from 3/28/05 New Yorker

Yep, I'm bloggin' again! I thank my current Introduction to Legal Research students for curing my eight-month case of blogger's block. During one class, I touted blogs as a revolutionary, new millennial, form of grass-roots journalism. When the students asked about my blog, I confessed that I hadn't posted anything in many months. They've been giving me considerable (good-humored) grief since. Thank you dear law students. I'm honored to be your teacher, and enjoy your most excellent ribbing. Law school can drain a person emotionally, but you guys all seem to have your acts together. Your good humor will serve you well in your legal careers. I hope my efforts here will inspire some of you to start your own blogs. We'll talk next semester.

But guys, it takes discipline to blog. And well, that's not one of my strengths. But, hey, life is a work in progress - so, I'm working on more self-discipline (among overcoming other personal defects). OK, this blog is about Justice Scalia, not me. Enough online groveling!
I'm actually glad to learn that some of my students, friends and colleagues, have read Ninowatch. I thus have a duty to provide Ninowatchers everywhere with the latest Justice Scalia news and commentary. And much happened in the Ninosphere during my hiatus. So, I'll be catching up here - stay tuned! For my first post in many months, I resurrected the following post that I saved as a draft on blogger.com back in March '05.

An excellent article on Justice Scalia and his legal philosophy appeared in the March 28, 2005 issue of the lively leftish, east-coast centric style/culture rag, The New Yorker. The article, "Supreme Confidence: The Jurisprudence of Justice Antonin Scalia," is written by Margaret Talbot, a senior fellow at the New American Foundation. (The NAF graciously posted the full text of the article here .) The principal mission of this blog is to present a rationale, non-histrionic, non-ideological forum for discussion of Justice Scalia's jurisprudence and rhetoric. Ms. Talbot's article could serve as a manifesto for what Ninowatch is all about.

Aside from her neutral, yet thoughtful, treatment of Scalia, Ms. Talbot has a distinct gift for bons mots. She deftly describes J. Scalia at his November 2005 U. of Mich. speech as having "a square, ruddy face; thick black hair with a patent-leather sheen; gold-rimmed glasses; and an almost daunting air of vigor." More humorously, she described Justice Breyer during an oral argument as "sleepy and disengaged when he isn't speaking- gazing at the ceiling through half-closed eyes, like a learned tortoise[.]" She also captures Nino's demeanonor during oral arguments, writing that he " is perpetually sprung for action [; h]e rocks in his chair like a restless kid waiting for his turn at the blackboard."

Ya gotta love that! But apperances aside, Ms. Talbot clearly grasps the ontological forces behind Scalian jurisprudence. She writes that "jolly and gregarious though he is, Scalia does not have a sanguine view of human nature or much confidence in social progress [:] . . . Scalia despises utopian thinking." Indeed, Scalia takes a narrow view of the judiciary's role in the American polity. Scalia, the Originalist, is thoroughy opposed to the "Living Constitution" view of constitutional interpretation. Ms. Talbot quotes Scalia from the above-mentioned U. of Mich. speech:

If the Constitution is an empty bottle into which we pour whatever values-the evolving standards of decency of a maturing society-why in the world would you let it be filled by judges? I don't know what the standards of decency are out there. I'm afraid to inquire!

Great quote. Classic Nino. But it highlights the strength (and drawback) of the Originalist position. Apply the law as written - no legislating from the bench. On the other hand, people don't interpret text in a chronological vacuum. And Judges interpret the law in a rapidly changing world. The days of yore when the Federalist Papers (download for free here) were written - principally agrarian, anglophilic, and patriarchal - have thankfully passed. The Founding Fathers could not forsee the America to come, so they drafted much of the Constitution with simple phraseology - keeping it open for later interpretation, and, if necessary, amedment. The federal judiciary's role in this on-going, interpretive venture, depends on whether you adopt Scalia or Justice Brennan's views on constitutional interpretation.

But the true brilliance of the U.S. Constitution, which I'm certain Justice Scalia recognizes, is its grounding in natural law. We the American people ordain the Constitution to "secure the Blessings of Liberty to ourselves and our Posterity." Human rights and dignity, the greatest blessings of liberty, are an immutable part of the American experiment. The natural political tension arising from our tripartite federal system - as evidenced by Scalia's peevish rhetoric- is testament to the genius of the Founding Fathers' design. Which, alas, was (and is) considered utopian.

But, do read Ms. Talbot's superb article. Especially now after the great Chief Justice Rehnquist's death, and wonderboy Chief Justice John Robert's uneventful confirmation. The article speculates about a possible Chief Justice Scalia, so it's extra fun to read now. And take heart, we may have an Associate Justice Scalito to kick around in the near future!

Saturday, February 12, 2005

Scalia Jokes about being Chief Justice

It's been a month since I've posted to my blog. I've been very busy teaching my advanced and introductory legal research courses at Mercer Law, and I just haven't had much time over the last few weeks to tune in on Scalia news, views, and opinions. Anyway, enough excuses and self-pity, I apologize to anyone out there in the blogosphere that watches my blog (is there anyone?) Over the last few weeks I've felt "blog guilt"- and it ain't a good feeling. So, I'm back to Ninowatch, and I will get caught up with a backlog of commentary!!
The following AP story, which appeared last Sunday (02/06/05) in my hometown newspaper, The Macon Telegraph, really inspired me to update my blog.

Chief Justice Scalia? Maybe, but probably not
By Hope Yen
Associated Press Writer

It was Justice Antonin Scalia's standard speech. He bemoaned the Supreme Court's growing political role in cases such as abortion and joked about how Democrats are wary of a "Chief Justice Scalia." But in an appearance one week after President Bush's re- election, Scalia elicited a particularly hearty roar and ovation from a conservative Federalist Society crowd with his kicker. "Please," a clearly pleased Scalia said. "It was supposed to be funny!"

With Chief Justice William Rehnquist ailing with cancer, the irascible Scalia is doing nothing to discourage talk that he would like to be Bush's pick if Rehnquist steps aside this year. Scalia's ascension is considered a longshot because the staunchly conservative justice would prompt opposition from Democrats, abortion-rights supporters and other groups. Nonetheless, Scalia seems to be relishing, if not subtly encouraging, the speculation.

"We all know the story: If you're not seen, you're not likely to be considered or heard," said Douglas Kmiec, a former legal counsel in the Reagan and first Bush administrations. "A chief justiceship is clearly an opportunity for him to lead a court with new recruits." Scalia has been active on the Washington social scene recently, hamming it up with the political crowd. Some court observers say this may be an effort to counter White House concerns that the brusque Scalia is ill-suited for a job demanding consensus.

He agreed to be televised live on C-SPAN in a debate last month with Justice Stephen Breyer, a surprise given Scalia's famous hostility toward broadcast media. The nine justices are serving their 11th term together, a modern record. With Clarence Thomas the only justice younger than 65, many people think Bush could have the opportunity to appoint several justices to a court that splits 5-4 on the death penalty, affirmative action and gay rights.

Speculation about retirement has focused on Rehnquist, 80, a conservative who has been working mainly from home after announcing in October that he has thyroid cancer. Liberal John Paul Stevens, 84, and moderate Sandra Day O'Connor, 74, also are considered retirement possibilities. During the presidential campaign, Bush cited Scalia, 68, and Thomas as justices he admired because of their narrow interpretation of the Constitution. Thomas privately has made it clear that he is not interested in becoming chief justice, according to friends and former clerks.

Scalia declined an interview request. Friends say he is interested in the top job. "It would be unusual for someone who's been on the court as long as he has to not think about becoming chief justice," said former Education Secretary William Bennett, who used to play poker with Scalia. "He's not going to campaign for it, but he's well- qualified. He's a leader. He's extremely forceful, and all the members of the Supreme Court like him." Scalia received an unsolicited boost in December from Senate Minority Leader Harry Reid, D-Nev. He suggested he would be open to elevating Scalia, calling him a "smart guy." Reid described Thomas as "an embarrassment." Liberal groups such as People for the American Way say they are ready to attack Scalia's 18-year record against abortion and plan to highlight his browbeating dissents attacking colleagues.

They also intend to cite the ethics flap last year when it was disclosed Scalia accompanied Vice President Dick Cheney on a hunting trip while the court was considering a case involving Cheney. Even some conservatives say a bitter Senate fight over Scalia might not be worth it if it forces Bush to choose a more moderate candidate for associate justice to ensure approval. That would move the court to the left because Rehnquist has been a solid conservative vote. More probable is the nomination for chief justice of someone else who would keep the court more solidly right. "In its simplest form, someone has to answer the following for the president: If I elevate and get two difficult confirmations instead of one, what am I getting for that?" said Bradford Berenson, a White House lawyer during Bush's first term and a former Supreme Court clerk. "The opposition groups are armed and dangerous."

The main power of a chief justice comes from assigning opinions to justices. That often determines the tone and breadth of an opinion. Apart from that, the job largely is administrative. Some Scalia supporters are not counting him out. While the vast majority of chief justices have been outsiders, the most recent exception was 1986, when President Reagan elevated Rehnquist.

Scalia, who took Rehnquist's seat, sailed through the Senate on a 98-0 vote. His supporters think a package of Scalia for chief justice and another conservative for Scalia's seat could withstand a confirmation fight even though the Senate is far more partisan than it was when Scalia won approval nearly two decades ago. "It's entirely possible," said C. Boyden Gray, a former White House counsel for the first President Bush who now heads the Committee for Justice, a group that supports the younger Bush's judicial nominees.

Tuesday, January 18, 2005

Webcast Archive and Transcript of Justices Scalia and Breyer's 1/13/05 discussion at American University

I'm just catching-up on this one. But, in late January 2005, American University, Washington College of Law, posted links to an archived webcast and full transcript of Scalia & Breyer's 1/13/05 "conversation" on the "Relevance of Foreign Law for American Constitutional Adjudication." You can also view the webcast on c-span. (Real player required).
If you haven't viewed the webcast, or read the transcript, I highly recommend checking it out. It's great fun to watch the two best minds on the current Court having a casual chat about the use of international legal precedent in american constitutional law adjudication. During the conversation, they both agreed that the use of international precedent is analogous to the citation of legislative history to support legal arguments. So, needless to say, Breyer thinks it's OK, but Scalia does not " use foreign law in the interpretation of the United States Constitution." Although Scalia mentioned one exception to the use of foreign law as precedent:
"Old English law, because phrases like 'due process,' the 'right of confrontation' and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law."
In any event, Professor Kenneth Anderson notes on his blog the ease with which the two justices discussed complex legal issues. Well, they ain't Supreme Court Justices for nothin'.