Monday Late Nite: Originalist Sin
(CBS) Not many Supreme Court justices become famous, but Antonin Scalia is one of the few. Known as "Nino" to his friends and colleagues, he is one of the most brilliant and combative justices ever to sit on the court and one of the most prominent legal thinkers of his generation.
During a 30 minute interview worthy of "The Manchurian Candidate", the woefully unprepared Lesley Stahl illustrated precisely why American journalism, in the "original" sense of the word, is pushing up daisies. You would think that spending half an hour fellating the most predictably contentious and consistently anti-humanist Supreme Court Justice would be exhausting, but no, Lesley demonstrated last night that she’s the queen of the CBS rainbow parties.
Before Stahl even asked her first question, we knew where the interview was headed, with a lead-in more unctuous than a used car salesman’s pitch:
At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.
Editor’s note: Can the media please stop using the term "maverick" as a metaphor for "72 years old, obstreperous, and willfully out of touch"? It doesn’t apply to McCain, and it sure as hell doesn’t apply to Scalia. And maybe you should explain that Scalia’s an originalist only when it’s convenient – like when his corporate buddies are in the hot seat.
But this was one of the lesser offenses committed during the interview — the fact that Scalia agreed to be interviewed on "60 Minutes" in the first place displays the unhealthy disregard that he has for the Code of Judicial Conduct. Here’s Scalia on Gore v. Bush:
"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.
"I say nonsense," Scalia says.
Was it political?
"Gee, I really don’t wanna get into – I mean this is – 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," Scalia says.
"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn’t go looking for trouble. It was he who said, ‘I want this to be decided by the courts.’ What are we supposed to say? ‘Oh, not important enough,’" Scalia jokes. (Emphasis mine.)
This is "brilliant" judicial reasoning? This is the ginsu-sharp intellect that has Lesley Stahl simpering in her chair like a 13-year-old at a Jonas Brothers concert? Like the husband who asserts that his wife was asking to get hit, Scalia was more than happy to shift the blame to Gore for the 7-2 decision that found the Florida recount method unconstitutional. Whether it was within the Court’s power to shut down the recount and anoint George Bush President, well that’s another matter, one that was decided 5-4. Not that the audience was given the chance to absorb that, since Stahl seemed uninterested in challenging the cocksure Scalia as she moved on quickly to her next talking point.
But nothing was quite so outrageous, and would demand Scalia’s recusal from any case that might eventually make it up to the Supreme Court, as his looking-glass position on torture:
"If someone’s in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression ‘cruel and unusual punishment,’ doesn’t that apply?" Stahl asks.
"No, No," Scalia replies.
"Cruel and unusual punishment?" Stahl asks.
"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don’t think so."
"Well, I think if you are in custody, and you have a policeman who’s taken you into custody…," Stahl says.
"And you say he’s punishing you?" Scalia asks.
"Sure," Stahl replies.
"What’s he punishing you for? You punish somebody…," Scalia says.
"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.
"It’s the latter. And when he’s hurting you in order to get information from you…you don’t say he’s punishing you. What’s he punishing you for? He’s trying to extract…," Scalia says.
"Because he thinks you are a terrorist and he’s going to beat the you-know-what out of you…," Stahl replies.
"Anyway, that’s my view," Scalia says. "And it happens to be correct."
Case closed. Who are we to argue with such finely delineated analysis? Such effortless, gravity-defying leaps of logic! So what does Stahl do? Does she counter this assertion that it’s okay to "punish" people who haven’t been found guilty of any crime? No. She lauds his "down to earth" personality and asks him about the Yankees.
So here’s to you, Lesley Stahl. If your intention was to reveal the awful plot to seize the White House, then job well done. If not, then "60 Minutes" should be relegated permanently to the dung heap of "entertainment programming."