March 23, 2009

Andrew Cohen's Anti-Scalia Farce

Andrew Cohen of CBS News' Court Watch has a blistering response to Justice Scalia's interview that I highlighted here.  In the forty some odd minutes of the interview, Scalia discusses religion once.  It was in response to a direct question in which he said, “As far as I know, there is only one element of my faith that has anything to do with my being a judge…. ‘Thou shalt not lie.’"  Somehow this one line leads Cohen to the belief that he "never understood until now just how deeply Justice Scalia’s legal philosophies and tactics are dictated by his religious fervor."  That might be the most ever gleaned from 'thou shalt not lie.'  Framing Scalia in this light allows Cohen to dismiss him as a "deeply devout idealogue."  There are plenty of things to take umbrage with in this article, but I want to focus on one line in particular.

In describing originalist legal theory Cohen writes,
"This is the jurisprudence of the self-righteous; where faith in the omniscience of the Constitution’s founders dwarfs all of the evidence we now have that the rich, white, often-slave-owning men who negotiated the terms of the document (and the Bill of Rights) were just as prone to vice, self-interest, and poor judgment as their political successors."
First, describing a champion of judicial restraint as self-righteous seems to be a bit of an oxymoron.  This is especially true because Cohen notes above that,
"This is, indeed, the lament of Originaliasts; too many appointed judges, and not enough elected legislators, get (or usurp) the final call on contentious issues. It’s a philosophy that exalts politicians at the expense of judges; a theory that, even Scalia concedes, presumes that democracy works far better than it actually does."
So let me get this straight.  The "jurisprudence of the self-righteous" thinks that contentious issues should be decided by the will of the people and not a majority of the bench.  Oh the self-righteousness!  It would seem that Cohen's view is far more self-righteous, for he wants judges -- excuse me "change agents" -- to be the final arbiter of contentious issues even where they overturn the will of the people.  All because they presumably have some moral superiority to the citizenry. 

Second, Originalists don't believe the omniscience of the founders trumps "evidence we now have that the rich, white, often-slave-owning men who negotiated the terms of the document (and the Bill of Rights) were just as prone to vice, self-interest, and poor judgment as their political successors."  What Cohen seems to miss or likely to ignore is that there is a process to correct all the boogeyman situations that he mentions including the missteps of the founders: the amendment process.  This process allows for these "contentious issues" to be hotly debated in public and compromise reached instead of decided on the whim of the "change agents."

Cohen's article just comes off as petty and clearly shows that he has an axe to grind.  He forces the interview into his pre-conceived notion despite the interview's unwillingness to fit.  His repeated use of boogeymen such as Jim Crow and Brown v. Board of Education remind me of the time Whoopi Goldberg asked John McCain if she had to worry about becoming a slave again.  It is just a cheap scare tactic. 

Watch the entire five-part interview and compare Scalia's words to the article.  It will seem like Cohen watched a completely different interview.


Peter Robinson, who conducted the interview, responds here.

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