I wish I could say it feels good seeing everybody finally catching up with me after a decade or so, but it doesn’t. I predicted Obama’s corporate sell-out and got kicked off a Democrat group blog. I predicted his continued support of the Bush attack on privacy rights, and even that he would strengthen that attack, and I got left-wing hate mail. I predicted that he wouldn’t close Gitmo, and discovered that I was a “traitor”, an “extremist”, and, somehow, a Commie conservative. Nobody wanted to hear it, let alone believe it, but here we are, 5 years later, with massive NSA spying approved by the Administration, drones and a new presidential power to use them against anyone he (or she) doesn’t like and on his/her own say-so and nothing more, a continuing Gitmo embarrassment that Obama won’t end even though everybody – even the military – wants him to, and a Justice Dept that seems more eager to protect corporate profits than civil rights. Even some of his most rabid supporters are now being forced to admit that a Third Way Dem hasn’t turned out to be much of an improvement over a whacko corporate Pub.
But criticizing Dems for being so Pub-like isn’t the only position I’ve taken hits on. Back in March of ’04, when even liberals were wishful-thinking about Anthony Scalia – he’s so intelligent, he’s such a brilliant legal scholar, he’s sure to be more reasonable than, say, Robert Bork! – and this despite throwing out everything he claimed to believe about the Constitution in order to install George W Bush as president, I wrote this:
Antonin Scalia has a reputation as a brilliant conservative jurist, but every time I delve into one of his decisions I emerge from the gloom wondering how he came by it. His decisions seem to me riddled with puerile, self-indulgent justifications and facile, even superficial argumentation based more on ideology than law. Even if his reputation was for brilliant legal twists and turns to get the law to mean what it doesn’t mean, he wouldn’t deserve it. For the most part, his wordy interpretations are little more than high-blown legal rhetoric, thin on law and thick with presumption. He’s tricky and manipulative, clever but not “brilliant” by a long shot.
I got emails and other feedback to the effect that I was “too judgmental”, that I wasn’t a lawyer and “couldn’t possibly know” what I was talking about, and that I should “give the guy a chance”.
Salon’s Alex Pareene , at least, has finally noticed that Fat Tony is mostly wind and proves it by examining his DOMA defense.
Scalia is widely praised, even (perhaps especially) by liberals for his intelligence, his wit and his supposed intellectual consistency — he is thought to have a very specific interpretation of the Constitution and while it’s a dumb one he adheres to it — but this decision exposes him for the politician that he actually is. As Richard Posner has argued, Scalia will abandon both strict textual originalism and “judicial restraint” when it suits him. (Justice Thomas is actually better at coming up with legal and constitutional justifications for his social conservatism, consistent with his view that the Constitution may only be understood in terms of the political and social context in which it was written.)
The most notable portion of Scalia’s dissent isn’t the point about the court’s lack of jurisdiction, but the portion where he engages in straight-up right-wing victim-complex self-pity of the sort that would not be out of place in a Maggie Gallagher column.(Indeed, Maggie approvingly quotes this very passage.) Scalia moans at length that Justice Kennedy’s decision is mean to anti-gay marriage people. It is so mean to them! People who oppose gay marriage are the Real Victims here, because Justice Kennedy has accused them of demeaning gay people simply by wishing to deny them the right to marry…
Actually, his decision on Bush, his decision on Cheney’s refusal to obey a court order, in fact just about every decision he’s made in the last 13 years “exposes him for the politician he actually is.” And Alex, using the term “politician” instead of the term “ideologue” kind of completely misses the boat. Just saying.
See, we’re not dealing with “politicians”, we’re dealing with True Believers. As the Tea Party proves, TB’s will bail on the Pubs or any other political party or politician they don’t consider “pure” enough. Fat Tony has proved over and over again that he is one of those. Yes, he is generally in line with the Pubs but his arguments are unadulterated schoolyard Tea Party: “If everybody doesn’t do what I tell them, they’re picking on me.” And, sadly, that’s it. Fat Tony isn’t “brilliant”, he isn’t even particularly bright once you eliminate the confusing bullshit and contradictory positioning, and he never has been. It has all been an act. A scam. A baffle-em-with-bullshit performance. He’s the legal equivalent of a circus clown.
Really, guys. We need to start paying more attention and a whole lot earlier.
If it isn’t already too late….