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!