perfidy

Also to oversimplify, the drug war is an unmitigated disaster. The sooner we can undermine it, the sooner it will fall.

Good point on the contrary trends thingy - all to often, we think of the gubmint as a monolithic entity. Of course, in many senses it is a monolithic entity, or at least a monstrously big entity. But the gubmint is composed of countless bureaus, agencies, departments, commissions and nosy-parkers, each with their own agenda and ego-driven turf defending leadership. There are many competing factions and ideologies. The goverment is large, it contains multitudes. Quite literally.

So...

"We are Legion"? Is that why the Pentagon is shaped like that?

What are you saying, Buckethead, exactly? Or should I call you Yog-Soth-Oth?

I take special note of Scalia's recusal from hearing this case. My observation of most recusals is that the judge is in some way related to the issue at hand -- owns shares in a company, the great uncle of the plaintiff, etc. But in this case, Scalia is saying, "yes, I have a strong opinion on the subject in this case, and I just can't be trusted to even separate my personal opinions -- because they are publicly known -- from my responsibilities as a justice." In the end, it's better that he recuse himself for all involved, but his recusal itself exposes the fallacy of his objectivity. Pitiful.

MuffinMan, you can't have it both ways - if, because he had earlier made public comments on the case, he has recused himself, he is doing the right thing. Why does that make him pitiful?

Since Scalia has not (and likely will not) comment on why he recused himself, we don't know. But even the appearance of conflict of interest is generally enough to trigger this kind of action. Other justices have done similarly. And, even had we never heard what he said in Fredericksburg, would we have been surprised that Scalia went against Newdow's complaint any more than we would have been that certain other judges sided with it? What do we say of their objectivity - or do we presume that they are merely acting in a completely rational and unbiased manner?

I don't think you got my points. How does simply having a personal opinion on a subject constitute even the appearance of a conflict of interest? I interpret the word "interest" as owning stock, being related to a party in a legal case, or other tangible entanglement. Having an opinion, publicly known or not, is not "interest," as most people would define the word. But a U.S. supreme court justice who simply can't separate his or her personal opinion from the awesome responsibilities to be fair and balanced, well that sucks. I suppose it's good that Scalia, by recusing himself, admitted that he can't be trusted to do his job, but too bad we don't have a trustworthy justice up there.

I suppose he will get in a good round of golf while his fellow justices, who probably also have their own personal opinions on the subject, are off deciding this case.

Gosh, it looks like others share my disgust:

[url=http://www.washingtonpost.com/wp-dyn/articles/A38135-2003Oct16.html]htt…]

Did you read the same article I just did? That WP analysis seemed rather sympathetic.

"Yet a member of the court who cares passionately about the issue will be stuck on the sidelines -- a victim, it appears, of his outspoken disagreement with what he sees as the court's misguided impulse to banish God from the public square."

"...In saying that, Scalia was expressing a philosophy of constitutional interpretation that he has espoused throughout his career, first as a law professor and then on the Supreme Court."

The article talks about his steadfast beliefs, and how they may have limited his effectiveness on the court compared to more moderate justices.

When it talks about the facts leading to the recusal, we see:

""If the gentleman holding the sign can persuade all of you that we should eliminate God from the Pledge of Allegiance, that could be democratically done," Scalia said. It should not, he added, be done by judges. This shows, Newdow later argued, that Scalia had prejudged his case. "

While it may be argued, as Newdow did that this is reason for recusal - the opinion that Scalia put forth is not the kind of evil that you seem to suggest. The position that legislation should be made by legislators and not the courts is not some sort of fringe belief - it is in my opinion a good and reasonable one.

And Scalia is capable of separating his beliefs from his responsibility as Justice - the flag burning case mentioned in the article you linked is a perfect example.

The WP article that I read talked about a Supreme Court justice who is so embittered and fringe to his fellow justices, that he is not able to perform his job functions.

It was in fact Scalia who recused *himself*, not Newdow, and in so doing, gave credence to the notion that he is not fit to judge this case for having his own personal opinions. Whatever Newdow or others say is irrelevant, because Supreme Court justices need not concern themselves with their own popularity. Scalia just as easily could have told Newdow and others to take a flying fuck, no? Is there a Supreme Court code of ethics for justices that says any justice who has thought about an issue and reached a personal opinion, prior to the case reaching the Court, must recuse themselves? In that case, we might as well have the O.J. Simpson jury up there instead.

When a justice deems himself not fit to judge because his extreme opinions (relative to the rest of the Court) and sour grapes get the best of him, we need a new justice on the bench.

If he can't function, he can't function.

So, would it have been better for Scalia to have told Newdow to take a flying fuck at a rolling donut? Are the other justices better for having strong opinions that they do not share in public fora?

The core of your argument seems to be that you disagree with Scalia, and therefore his recusal is evidence of his unfitness to be a Supreme Court Justice. If he had not recused himself, would you have been just as upset because he had commented on the case yet gave an opinion anyway?

All of the Justices have strong opinions on many things. Scalia made the error of talking about this case before it reached the court instead of after, in either a court opinion or dissent. He did the honorable thing by recusing himself. Recusal in one case does not suggest that he cannot function as a justice at all.

And the article does not say that he can't perform his job, it merely says that he has been unable to persuade all of his fellow Justices (the liberal ones) to his point of view. That is perhaps reason for sadness, but it is not compelling case that he is unfit for the court.

If you don't like him, that doesn't mean he should be replaced. Otherwise Tom Daschle, Dick Gephardt and several liberal Supreme Court Justices would be out of jobs because I don't agree with them.

Okay, I've clearly done a terrible job explaining my point, because you seemed to have misunderstood almost everything I've said. Let me try one last time to be clear.

Buckethead: "Are the other justices better for having strong opinions that they do not share in public fora?"

Huh? Any justice can have any strong opinion he or she wants, public or private is completely irrelevant to me. I think I said something to that effect already. The problem with Scalia is that he is so overcome with the righteousness of his personal opinion, that it has, by his own admission, incapacitated his ability to judge. His admission was made by recusing himself. Who cares what Newdow or anyone else thinks. If our justices were to care what someone like Newdow thinks, that would be a problem all by itself.

Buckethead: "The core of your argument seems to be that you disagree with Scalia, and therefore his recusal is evidence of his unfitness to be a Supreme Court Justice. "

I don't recall discussing whether or not I disagree with Scalia on the case itself. I said that recusing one's self because a personal opinion is so powerful that you can't hope to be objective, well, that's a serious problem if you're a Supreme Court justice.

Do you know the classic police drama cliché where the chief takes the cop off the case because he's too emotional about the subject, and he's liable to do something really stupid as a result? Bottom line: the cop is incapable of doing his job. Scalia took himself off the case because he wasn't up to the job. Not a good quality in a Supreme Court justice.

Buckethead: "If he had not recused himself, would you have been just as upset because he had commented on the case yet gave an opinion anyway?"

How does this follow from my comments? There is no "damned if you do, damned if you don't" counter-argument here that I can see. No, he should not have recused himself, and no, he then should not have let his personal opinions cloud the case in front of him. He should have instead accepted his colleagues' determination that the Court should hear the case. Failing that, he should get into a new line of work, where cooperation with peers is not a job requirement.

On the issue of whether the Court should hear the case: Of course. When someone doesn't want a constitutionally questionable law undone by the courts, they call it legislating from the bench. But Congress can pass an unconsitutional law any day of the week, and we only have the courts to undo it. My third-grade teacher told me that was called "checks and balances," and I kinda like the idea.

"All of the Justices have strong opinions on many things. Scalia made the error of talking about this case before it reached the court instead of after, in either a court opinion or dissent. He did the honorable thing by recusing himself. "

I don't see honor in losing faith in one's own objectivity. The honorable thing is to remove his tenuous self from the Supreme Court altogether.

"Recusal in one case does not suggest that he cannot function as a justice at all."

I don't recall saying that. My point to Scalia would be, 'either learn how to play nice with your fellow justices, or get off the court because you have hobbled you ability to judge.'

"And the article does not say that he can't perform his job, it merely says that he has been unable to persuade all of his fellow Justices (the liberal ones) to his point of view. That is perhaps reason for sadness, but it is not compelling case that he is unfit for the court."

No, *I* say he can't perform his job, by merely observing him recuse himself. If he has a serious problem maintaining the objectivity that all justices should maintain, then he needs an indefinite vacation from the bench. Maybe he and Clarence can drive Clarence's RV off into the sunset together?

"If you don't like him, that doesn't mean he should be replaced. Otherwise Tom Daschle, Dick Gephardt and several liberal Supreme Court Justices would be out of jobs because I don't agree with them."

Again with your 'unexpected' interpretation of my posts. "dont like him -> should be replaced?" Huh? Is my writing so awful or confusing that you come away with such a simplistic misunderstanding of the points I'm trying to make?

Perhaps I should stop commenting here, if the result is such utter confusion?

Don't get in a huff, we are happy that you are commenting! What we have here, I guess, is a very different take on the events.

I believe the center of that lies here:

"The problem with Scalia is that he is so overcome with the righteousness of his personal opinion, that it has, by his own admission, incapacitated his ability to judge. His admission was made by recusing himself."

I don't think that is the case. I don't think that Scalia's recusal is in any way the admission that you make it out to be. I don't think that his prior comments on the case have removed his ability to judge, or that he has lost his objectivity. Scalia showed in, for example, the flag burning case that he could rule that something he abhorred - flag burning - is legal based on constitutional law. This case would be no different.

He is not incapacitated - however - his prior comments could be interpreted as prejudging that specific case. And that is bad, and that is why he did the right thing in recusing himself. I don't feel that it is evidence that he is unfit to be a Justice, and that he can't perform his job. Not a case, where, "if he can't function, he can't function."

The reason why I presumed that you disliked him is that you use these kinds of phrases: "overcome with the righteousness of his personal opinion", "Pitiful", and "can't be trusted." And in your most recent comment, you threw Justice Thomas into the mix. (one might think you have something against conservative Justices... hmnm...) If anything, I should be mad at Scalia, because he won't be voting on something your average conservative is rooting for.

You want him off the court, correct? Is it because you so strongly believe that he is incapable of doing a good job of being a Supreme Court Justice, and that another, equally conservative but more objective (or more careful) Justice would be acceptable?

Anyway, it's all in good fun as we hash out these political arguments. No offense is intended, and I apologize for being so dense as to not explain my positions as well as I would like. The job, you know - they keep insisting that I work, and that work interferes with my ability to construct airtight, reasoned arguments. We all do the best we can.

Coming late the party, I will offer this: this issue has been one of Scalia's biggest crusades his entire career. He is afraid that is staying IN the case will make it appear as if his personal politics are getting in the way of his duties.

Seeing as how Scalia has in the past NOT gotten out of the way of his own opinions, using his position to advance his own particular morality under cover of law, I applaud his decision to stay out of this one. Not that it's not without its own baggage, as Muffin Man points out.

Both you guys raise good points, and I just want to stand in the middle and wring my hands a little like I'm so good at.