July 13, 2008
Scalia: Too many lawyers (and judges, too, says me)
Journalist John Fund writes in tomorrow's Wall Street Journal of an interview given by Supreme Court Associate Justice Antonin Scalia to the U.K.'s Daily Telegraph, wherein the jurist spoke of the Court's role in deciding the outcome of the 2000 presidential race.
Scalia told the Telegraph interviewer that he'd have preferred that the Supreme Court stayed out of the campaign, but there was little choice, given Democratic candidate Al Gore's request to have the Florida Supreme Court force a change in the state's vote-counting process.
He said that he "of course" regretted that the Supreme Court had become involved. "But I don't know how we could have avoided it. Could we have declined to accept the case on the basis that it wasn't important enough?
"And you know bear in mind that the issue wasn't whether or not the election was going to be decided by a court or not. It was whether it was going to be decided by the Florida court or by the United States Supreme Court, for a federal election.
"So I have no regrets about taking the case and I think our decision in the case was absolutely right. But if you ask me 'Am I sorry it all happened?' Of course I am sorry it happened there was no way that we were going to come out of it smelling like a rose.
"I mean, one side or the other was going to feel that was a politicised decision but that goes with the territory."
He flatly denied there was any "partisan prejudice" involved in the 5-4 ruling, adding that "if you want to look for partisan decisions" then they could be found in the Florida supreme court's rulings.
That aroused my curiosity about the case; I haven't looked at the decision and dissents in years, so I re-read them, then checked out the transcript of the oral arguments.
I'd forgotten that seven of the nine justices agreed that the Florida Supreme Court's actions had given rise to a violation of the U.S. Constitution, but two of the seven disagreed with the majority about what the proper remedy ought to be, leaving five votes for stopping the recount being conducted in the counties most likely to go for Gore.
If you don't want to wade through all the leagalese, here's a one page summary of the question posed, the decision, and how the votes broke down.
According to Scalia, if critics of the Supreme Court's decision want to blame anyone, they ought to begin with the person who threw the political issue to the courts in the first place.
The 2000 presidential election debacle was the fault of Al Gore, who should have followed Richard Nixon's 1960 example and conceded without legal action, according to the Supreme Court's leading conservative judge.
"Richard Nixon, when he lost to [John F.] Kennedy thought that the election had been stolen in Chicago, which was very likely true with the system at the time," Justice Antonin Scalia told The Telegraph.
"But he did not even think about bringing a court challenge. That was his prerogative. So you know if you don't like it, don't blame it on me.
"I didn't bring it into the courts. Mr Gore brought it into the courts.
"So if you don't like the courts getting involved talk to Mr Gore."
The Telegraph provides some background on the 1960 Nixon-Kennedy race, noting that:
Mr Kennedy won Illinois by just 8,858 votes and there were also allegations of voter fraud in Texas, where he won by 46,257 votes. If Mr Nixon had won both states he would have reached the White House eight years before he beat Hubert Humphrey in 1968.
Mr Kennedy's Illinois victory came from Chicago's Cook County, where he won by a stunning 450,000 votes.
There have long been allegations that Mayor Richard Daley, a Kennedy ally, and his Chicago Democratic "machine" engaged in large-scale electoral fraud.
Mr Nixon conceded the election to Mr Kennedy rather than going to the courts.
Fund echoes the point made by Scalia at the tail-end of the interview that we've got too many darned lawyers in the U.S., that we are -- in the words of the jurist -- "over-lawed," and I'm adding a full-throated, "You're darn right!" to the mix.
"I don't think our legal system should be that complex. I think that any system that requires that many of the country's best minds, and they are the best minds, is too complex.
"If you look at the figures, where does the top of the class in college go to? It goes into law. They don't go into teaching. Now I love the law, there is nothing I would rather do, but it doesn't produce anything."
That's not quite true; lawyers become judges, and judges get to invalidate statutes, throw out voter initiatives, redefine the meaning of words -- "shall" means "may" and "may" means "must" -- and amending the Constitution on the fly.
It's like getting elected to Congress and the Presidency for life, without ever having to run for office.
How cool is that?
Yeah, definitely too many lawyers.
Judges, too.
Posted by Mike Lief at July 13, 2008 11:32 AM
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Comments
Ouch.
Posted by: ecmarm at July 14, 2008 12:02 AM