MARK KARLIN, EDITOR OF BUZZFLASH AT TRUTHOUT Scalia admits to legislating from the bench
During oral arguments yesterday about whether or not the Voting Rights Act (VRA) is constitutional, partisan judicial thug Antonin Scalia revealed a new facet of his personality; he is a clairvoyant.
Congressional support for reauthorizing the VRA was overwhelming, even in 2006 when the vote was taken during Bush's second term: the Senate reauthorized it by a vote of 98 to 0. In the House, the vote was 390 to 33.
But Scalia, who has made his trademark being a self-proclaimed "strict constitutional constructionist" who scorns liberal judges who allegedly legislate from the bench, came out of the closet in heaping contempt and derision on Congress for passing the VRA. Although Scalia has long been perhaps the stellar example of a judge who legislates from the bench (on behalf of the right wing), he's usually coded his usurpation of congressional and other legislative powers in legal mumbo jumbo.
Yesterday, however, the Washington Post editorial board chastised Scalia for openly claiming:
"THIS IS NOT the kind of a question [the VRA, particularly Section 5] you can leave to Congress,â€ť Justice Antonin Scalia pronounced during a Supreme Court argument Wednesdayâ€¦.
â€śIt was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation,â€ť Justice Elena Kagan said, in what might seem a self-evident point.
But not to Justice Scalia. â€śOr decided that perhaps theyâ€™d better not vote against, that thereâ€™s .â€‰.â€‰.none of their interests in voting against it,â€ť he said. Later he elaborated on why he feels free to dismiss this particular congressional action: â€śI donâ€™t think there is anything to be gained by any senator to vote against continuation of this act. .â€‰.â€‰. They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?â€ť
Enter the latest "skill" of the flim-flam SCOTUS judge that even people such as Harry Reid believe is "brilliant," if being brilliant means the ability to pull off con after con by a combination of bullying and legal jabberwocky that sounds wonky, but is just high falutin' court language twisted into a pretzel of contradictory reasoning.
Scalia's conduct yesterday doesn't rise to the level of a Senate impeachment, but it should. After all his years of accusing liberal judges of legislating from the bench and crowing that he is a strict contstructionist -- which to him means the Constitution means whatever Antonin Scalia says it means -- he yesterday finally came out of the closet and basically said Congress is irrelevant.
Fortunately, as Dana Milbank writes in the Washington Post, Sonia Sotomayer and Elena Kagan are standing up to Scalia's ego-maniacal, ideologically driven sardonic legal declarations:
The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.
Kagan is choosier about when to interject herself, but sheâ€™s sardonic and sharp-witted. (â€śWell, thatâ€™s a big, new power that you are giving us,â€ť she said, mockingly, when a lawyer tried to argue that the justices should overrule Congressâ€™s discrimination findings.)
Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the courtâ€™s conservative majority: You may have the votes, but youâ€™re going to have a fight.
Wednesdayâ€™s voting rights case was typical. Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the benchâ€¦.
Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. â€śEven the name of it is wonderful,â€ť he said. â€śThe Voting Rights Act: Who is going to vote against that?â€ť (Verrilli [the US solicitor general] cautioned him not to ignore actual votes of Congress in favor of â€śmotive analysis.â€ť)
As Talking Points Memo reminds Justice Scalia, this is what is in the Constitution:
2. The United States Constitution, Amendment XV: â€śSECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.â€ť
Scalia is a judicial fraud, a one man wrecking ball to the balance of power between the three branches of government upon which this nation was founded. He even led a coup that resulted in a disastrous eight years of a tyrannical Bush/Cheney administration. Without Scalia's intervention in stopping the Florida recount, Al Gore would like have been president -- as he was chosen tp be -- from 2001 â€“ 2009. This was judicial activism at its zenith: the reversal of an election [also remember Gore won the national popular vote by more than 540,000 ballots, plus the uncounted Florida ballots in his favor].
Scalia should be shamed and hounded from sitting on the Supreme Court, but for now he has the 5-4 majority and Congress is too intimidated to hold a supreme court justice accountable. Scalia leads a voting block that has done more harm to democracy than any other branch of government, as the partisan five continually hijack the constitution to rewrite it and ignore the balance of powers between the branches of government as set forth in the real Constitution.