Sunday, February 14, 2016

The Justice and the Unjust

Is there any chance that the presidential candidates who are lauding the judicial legacy of Justice Antonin Scalia might also learn from his style and temperament?

Now I need to be clear and state unequivocally that I am no fan of Scalia's legal philosophy, and I believe that many of his decisions have been damaging to the country.

But as I watched the Republican debate last night, coming just a few hours after the announcement of Scalia's death, I was struck by the horrible contrast between the whining, backbiting, inelegant, and completely shameful performances of those who would be president, and he whose death was being measured as much by the person he was as the views he held. To be honest, I didn't really know that side of Scalia and have to confess that my immediate reaction upon hearing of his death was one of satisfaction that this ultra-conservative voice would no longer be a block to issues I cared about.

But the more I reflected upon it, the more I thought that sometimes style can be just as important as substance, and may even be a pathway to achieving one's goals and fulfilling one's hopes. There is a long-standing American principle, and perhaps a larger human principle, suggesting that one does not have to make enemies of those who hold differing philosophical, religious, or political views. It appears that Justice Scalia was one who shared that perspective.

Justice Ruth Ginsburg, arguably the most liberal justice on the Supreme Court, is one of Scalia's closest friends. While he was the most intellectually rigorous conservative voice on the Court, he is also known for constantly seeking new insights, This can be illustrated by his role in transforming the importance of oral arguments.

Prior to Scalia coming on the Court, justices rarely asked more than a few questions and were mostly silent during Court hearings. Scalia changed all that, peppering the lawyers appearing before him with many questions in an effort to explore the legal boundaries and learn something. And most importantly, the warmth of his personality, his sense of humor, and his love of life injected a human element into his decisions and his relationships. Reading and watching television tributes about him has changed my view of the man, although not my view of his jurisprudence.

But like everything, there is a context, and it was the setting of last night's debacle in South Carolina that stirred these thoughts. Like a masochist, I feel that I'm tethered to these debates, unable to shake the notion that I must keep watching, no matter how painful it is. Last night was horrible on many levels, not just for the unseemly jousting over Scalia's replacement before many people had even heard of his death.

This country is in need of political debates worthy of the name, not the train wrecks we see in the Republican debates, and increasingly in the Democratic ones as well. The arguments are often demeaning, replete with name-calling, and accusations that opponents are liars. But rarely are these tactics constructive or informative. These politicians seem unable to prevent themselves from uttering outbursts that are immediately destined to become soundbites for hundreds, if not thousands, of replays on the 24/7 media. To the casual observer and to the international community, this is what our country is all about. Perhaps they are right.

How grand it would have been if one message emanating from the death of a doctrinaire but widely respected Supreme Court justice, sometimes acerbic but often playful, willing to befriend those he opposed, would have been to see those values embraced in that debate. Within sixty seconds it was obvious that such was not to be. Instead, we got children playing in the sandbox and arguing over a pale of water and a plastic shovel.

At the beginning of the debate, the moderators asked everyone to pause for a moment of silence in honor of Justice Scalia. The best thing that could have happened for the late justice and his family, for the candidates on the stage, and indeed for the entire country, would have been for that moment of silence to have extended the entire two hours.

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