Monday, February 15, 2016

Civil Discourse

On Saturday, at a writer's conference in San Miguel de Allende, when the death of Associate Justice Antonin Scalia was announced some of the participants cheered.   On Saturday night, at the GOP debate Donald Trump constantly butted in, as he has almost continuously in each debate and made a series of indefensible comments about George W. Bush and a host of others in the political realm.  He acted like a petulant child.

Both of these incidents are a reflection of the state of civil discourse.  For a republic like ours to survive neither should be tolerated.

Scalia was not timid about expressing his opinions.   He believed deeply in the concept of "originalist" thinking on the Constitution.  He used his intellect to advance his ideas.   He lived his beliefs.   But in his legal writing he was not trying to score political points.   Some of his best decisions were in his dissents.   He often poked fun at arguments made by others, either attorneys appearing before the court or his colleagues. But he used his wit to make a point not to stab.  In remembrances about him, everyone said he was a conscientious member of the court who understood that one's ideas do not always prevail.  I suspect that in years going forward, his opinions will be quoted often in future cases.

One of the first cases I noticed his writing was in the Kelo decision on eminent domain.  In the oral arguments Scalia raised the issue of whether eminent domain could be used by a city to condemn a Motel 6 for a Ritz Carlton - the hapless attorney for New London argued yes. The power of eminent domain should be limited to cases where there is a direct government need.  A fancy hotel is not in that definition.  Interestingly Donald Trump is a big fan of Kelo - although as he demonstrated in a recent debate he does not have a good idea about what the standards for eminent domain are.

Scalia used reason to explain his positions on an issue.  Donald Trump is the opposite.   He often shoots from the hip without reasoning.  His outbursts frustrated voter interest in understanding what type of president each of the candidates would be.   He is a divisive force on the political scene and his outbursts may well reduce the chances of the GOP finding a strong candidate for November.

One final comment somewhat related to the focus of this post.  I agree that the President has every right to nominate a successor to Justice Scalia, even in the last year of his presidency.   And while you will hear that the nomination of Justice Kennedy in 2007 is comparable, it is not.   That being said, the Senate in its advise and consent power has every right to delay or dismiss the nomination after it has been made.   If the President were smart he would find a distinguished jurist, with a record of supporting the Constitution, and nominate that person to the position.   But I doubt he will do that. He will look at the political considerations instead of choosing someone who can actually do the job and the court will remain a badly divided place - which might well turn again if the GOP is successful in November.   We all lose with those rules.

1 comment:

  1. Jon
    I could not agree more on both counts. Trump uses his well honed bluster to mask his lack of well thought out positions, and to advance his purpose. That purpose is usually to make himself look good. He is the ultimate bully, and like many of those he can and should be taken down. Someone needs to interview him as Katie Couric did with Sarah Palin. He will likely show us all just how little he knows.

    Agree with him or not, Scalia was a towering mind on the bench. His positions were consistent, and importantly- he had the correct view of our constitution. We all will miss his contribution to the court as is deals with 21st century problems and issues using the framework of the constitution.