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Justice Scalia, Do Your Manner and Tone Really Denote Fascism?
by Bill Hare
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For any international historian who had been away for a time either on another planet or taking a Rip Van Winkle style nap, how would that person find contemporary America?

That individual would have found the “60 Minutes” interview time that CBS generously bestowed on Chief Justice Antonin Scalia highly informative. He presented the term “originalist” as defining his philosophy on the U.S. Constitution, but after listening to him in detail the question would have to be asked whether what he presented is unstead unvarnished fascism.

The first point that would have to be questioned was when segment moderator Leslie Stahl referred to Scalia, without any supporting evidence, as “one of the most brilliant” jurists we ever had serve on the U.S. Supreme Court. Where are his credentials to justify such a glowing introductory comment?

Earl Warren had as his enduring legacy Brown v. Board of Education and Baker v. Carr, both landmark decisions that positively changed the face of American education and legislative democracy. John Marshall, who served 34 years on the Court, in Marbury v. Madison presented the cornerstone principles of judicial review that shaped the Republic during succeeding years.

What type of legacy is Justice Scalia leaving behind? While Stahl took great pains to show how even those he disagrees with find him charming and his brilliance was noted in terms of straight A report cards and graduation from Harvard Law School, what emerged from the interview process was a curmudgeon who scowled, demeaned, and ducked the important questions.

On the subject of the case that was the most important of his 22-year span on the Supreme Court, Bush v. Gore, he snapped in the manner of a persnickety uncle, “Get over it!”

When Stahl later sought out an opinion from him on the subject of abrogation of democracy in having the U.S. Supreme Court deprive Florida from conducting a recount, he snapped, “That’s my opinion!”

Scalia carried such “reasoning” to extended heights when the subject of torture was mentioned.

Presumably an “originalist” such as Scalia chooses to ignore international law that America sturdily sought to help implement at Nuremberg and Geneva as irrelevant since, regarding terrorism, he preferred to see the process instead in the context of “trying to get something out of someone.”

On the subject of Bush v. Gore, he ended up blaming Gore for the whole controversy since “it was Gore” who sought to bring the matter to the courts in the first place.

Scalia mixed an appalling gall with an “in your face” distortion style. No, Justice Scalia, with your own daughter making a trip to aid in the process, the team of Jeb Bush and Katherine Harris and others succeeded in denying thousands of black voters the right to exercise their constitutional rights to vote for president in Florida and threw up a blanket of damage control to solidify their scurrilous efforts.

It was on stalwart neoconservative and decidedly Republican as well as presumably originalist Fox News where George W. Bush’s cousin John Ellis called the election for his relative, giving him the big edge of being perceived as the election’s “winner” after the other copycat mainstream media networks quickly followed suit.

You belong to the Federalist Society, Justice Scalia, and so does your Rush Limbaugh admiring colleague Clarence Thomas. Theodore Olson was another Federalist Society member.

Did you ever take a class in legal ethics, Mr. Justice, during your school days?

Since your own son was a member of the same law firm as your fellow Federalist Theodore Olson, the Bush team’s lawyer, that should have signaled you to step down from hearing the case, much less voting on it, but you soldiered on in your originalist way and voted anyway.

Did you ever read anything about standing in your law school days, Justice Scalia?

Based on the legal principle of standing the Bush team had no reason to even have its case heard. The argument was that Bush would sustain harm as a citizen and have his constitutional rights impaired if a recount were to be conducted in the state of Florida.

As someone who has rejected so many appellants on the state’s rights doctrine, including minorities seeking assistance, how interesting it was to see you and Clarence Thomas reverse yourselves by denying a state the opportunity to conduct a recount that had been ordered by no less than its own supreme court.

It was the Bush team that first sought to use the courts in Florida to prevent a recount in Dade County. We remember the riot that resulted. While old Nixon ally Roger Stone helped direct traffic with his cell phone, Washington staffers under congressmen-ring leaders Tom DeLay and John Sweeney created bedlam and ended the recount.

They were also aided by a radical right Miami Cuban radio station that issued an SOS call to get out to the federal building where the recount was being held and help the rioters.

I suppose all this was in the best tradition of originalism and the U.S. Constitution, Justice Scalia. As you said, “Get over it!”

To victims of rendition, waterboarding and other forms of torture you also should “Get over it!” Your accusers have branded you as “suspects of terrorism” and that should be enough, right, Mr. Justice!

Accept your torture, accept your losses of liberty, and accept denial of the right to vote!

All of you “Get over it!”

Many of us see these dangerous patterns not as originalism as the Founding Fathers would have perceived it, as you believe in your paranoiac delusions, but as something radically different and far more dangerous.

Many of us see these patterns as nothing more than runaway fascism. On that basis we see you not as a shrewd, witty interpreter of the law, Justice Scalia.

Instead we see you as a disgrace to the nation and the Constitution you defile!

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