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Posted: 10/1/2004 2:21:23 AM EST
Justice Antonin Scalia Speeking at Harvard's John F Kennedy Jr. Forums yesterday:


Published on Wednesday, September 29, 2004
Scalia Describes ‘Dangerous’ Trend
Supreme Court justice

By DANIEL J. HEMEL
Crimson Staff Writer

The Supreme Court’s recent decisions protecting abortion rights, upholding the legalization of assisted suicide and striking down anti-sodomy laws represent a “dangerous” trend, Justice Antonin Scalia told a Harvard audience last night.
Scalia held the rapt attention of the jam-packed John F. Kennedy Jr. Forum last night, although some students and faculty said they were put off by his conservative judicial philosophy.

In a freewheeling question-and-answer session following the justice’s prepared remarks, an African-American graduate student challenged Scalia to defend the constitutionality of racial profiling.

The Kennedy School student, Larry Harris Jr., said that his Fourth and 14th Amendment rights had been violated when he was pulled over in Cambridge for—as he put it—“driving while black.”

Scalia was less convinced.

“What the Fourth Amendment prohibits is ‘unnecessary’ search and seizure,” the justice said. “Is it racial profiling prohibited by the Fourth Amendment for the police to go looking for a white man with blue eyes? Do you want to stop little old ladies with tennis shoes?”

The eccentric justice launched into a parody of a police radio dispatch under a scenario in which profiling were prohibited. “The suspect is 5’10, we know what he looks like, but we can’t tell you,” Scalia quipped—drawing laughter from the audience.

Harris was less amused. He said afterwards that “the flippancy with which [Scalia] dealt with the question was insensitive. It shows that on issues like this, he might be a little out of touch.”

Earlier in the evening, Scalia ridiculed the European Court of Human Rights’ 2000 decision striking down British legislation that bars group gay sex on the grounds that the law intruded upon private life.

He asked—rhetorically—how many individuals would have to be involved in a sex act for it to no longer qualify as “private.”

“Presumably it is some number between five and the number of people required to fill the Coliseum,” Scalia joked.

An audience member later rose to ask Scalia “whether you have any gay friends, and—if not—whether you’d like to be my friend.”

“I probably do have some gay friends,” Scalia said. “I’ve never pressed the point.”

But Scalia said his personal views on social issues have no bearing on his courtroom decisions.

“I even take the position that sexual orgies eliminate social tensions and ought to be encouraged,” Scalia said.

“But it is blindingly clear that judges have no greater capacity than the rest of us to decide what is moral.”

Scalia graduated magna cum laude from Harvard Law School in 1960 and become the first Italian-American Supreme Court justice in 1986.

He said that jurists should be selected for their “lawyerly skills and judicial temperament.” But he said that the Court’s progressive voices had politicized the judicial process in recent years.

Dunster House resident Zachary D. Liscow ’05 rose during the question-and-answer session to suggest that Scalia’s own vote in the controversial 2000 presidential election case could be viewed as an example of the “judicial activism” Scalia deplores.

“I do not mean by [‘judicial activism’] judges actively doing what they’re supposed to do,” Scalia responded. He said the Florida Supreme Court’s decision to order a recount in Miami-Dade County—a decision Scalia and his colleagues overruled—amounted to a “clear violation of the federal constitution.”

And while conservative justices have been criticized for effectively deciding the 2000 election themselves, Scalia quipped: “Would you rather have the president of the United States decided by the Supreme Court of Florida?”

While Scalia’s prepared speech—which lasted less than half an hour—was narrowly focused, his remarks in the 20-minute question-and-answer question spanned a broad range of topics.

In one of the more bizarre moments of the evening, Scalia mentioned—in passing—that he thought the 17th Amendment was “a bad idea.”

The 17th Amendment provides for the direct election of senators.

The students, faculty and community members who held tickets to last night’s event were the winners of an online lottery in which 2,016 entrants competed for 850 spots.

The fortunate few who scored seats walked out of the forum wowed.

“That was quite possibly the most eloquent speech I have ever heard,” said Hurlbut resident Eduardo E. Santacana ’08.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.



What the HELL was he THINKING? Or was he?
Link Posted: 10/1/2004 2:26:03 AM EST
On point #1, yeah, that was a bizarre thing to say.

On point #2, hey, that's the way our Founding Fathers set it up, they must have had a valid reason for it.
Link Posted: 10/1/2004 2:27:50 AM EST
He was thinking, hey no matter what I say my bodyguards will get all recordings of it when I'm done...
Link Posted: 10/1/2004 2:29:05 AM EST
"The fortunate few who scored seats walked out of the forum wowed."

---------------------------------------------------------------------------------

They're not the only ones "wowed" by that speech. How disturbing.
Link Posted: 10/1/2004 2:30:21 AM EST

Originally Posted By cyanide:
He was thinking, hey no matter what I say my bodyguards will get all recordings of it when I'm done...



Another person who does not understand the Internet...
Link Posted: 10/1/2004 2:40:07 AM EST
Direction election of Senators is one of the biggest screwups our country has ever made part of the Constitution.

Kharn
Link Posted: 10/1/2004 2:44:51 AM EST
[Last Edit: 10/1/2004 2:45:47 AM EST by DaveS]
The 17th is one of the greatest mistakes made in adulterating the Constitution.

Dave S

....yeah, what Kharn said.
Link Posted: 10/1/2004 2:56:15 AM EST
The 17th Amendment is one of my expertise areas. I've even published on it, but I won't provide any links in light of my comfortable anonymity.

It was a mistake.

Before the 17th Amendment, Senators were chosen by a joint session of the legislatures of each state. I've actually pulled legislative journals of the Senatorial votes in Colorado, and seriously, that's exactly what happened: The States' House and Senate combined into a single session and voted for the senator slot that was up for election.

This made senators accountable purely to that STATE's particular issues ACROSS the whole state, as opposed to as determined by pure population size votes in the metropolitan centers (i.e., the way that Denver dominates senatorial elections just on raw numbers). It created a magnificient balance in terms of states rights and federalism. After the 17th amendment, the Senate became merely a smaller version of the House of Representatives but with the senators effectively more beholden to the large population centers and not the spread of districts as apportioned by the states for their assembly seats, and it has been damaging. Also, because each state has a different ballance between its House and Senate size (and some like Nebraska just don't have two houses), the weight given to the State's political balance as a whole under that state's constitution came into play a lot more. If that state's districting and constitutional scheme had a ton of rural districts (and thus a great deal more republican representatives), then those representatives voters would yeild more power under a pre 17th amendment scenario than they would when they have to try and compete with huge population centers. Again, some interesting checks and balances built in.

Link Posted: 10/1/2004 2:58:00 AM EST
Also, read his comments: His first comment was NOT out of bounds. He was making a very important point re: judicial review in terms of social mores. He was ripping the court for its homosexuality and abortion rulings. His example is that his personal favor for orgies doesn't make it right for him, as a judge, to try and impose is morals on the rest of the country. I'd lable his comments a pretty clear example of rhetorical hyperbole.
Link Posted: 10/1/2004 3:01:59 AM EST
There is a subtle, but definite, anti-conservative undertone in the editorial comments interspersed throught that article.
Link Posted: 10/1/2004 3:02:25 AM EST
I'm not too fond of the 19th amendment. (Women's right to vote.)
That's where our problems started in this country.
As for the orgy comment, he was just being honest and there probably is some strange
truth in that.
Link Posted: 10/1/2004 3:11:07 AM EST
Id' share an orgy with Antonin as long as the chicks were hot. That would be pretty cool.

Then again, law school kinda brainwashed me...
Link Posted: 10/1/2004 3:14:28 AM EST
[Last Edit: 10/1/2004 3:48:24 AM EST by GonzoAR15-1]
When Scalia spoke at my law school in the mid 90s, he kicked serious ass.

I had a few beers with him at the reception afterward, and after introducing myself (I have an Italian surname), he turned and toasted me, saying: "Salute! Good to see another Paisano legal eagle!"

I've also had occasion to have lunch with Justice Thomas, who visited the Colorado Supreme Court while I was a law clerk there. Much much smarter man than the liberals (who hate the fact that he is a black conservative) would have you believe.

Link Posted: 10/1/2004 3:21:21 AM EST
BTW, I should add to the above posts that at the time I met both Scalia and Thomas, I was a dyed in the wool gun owning democrat. Its only in the last 5 years that I've been unable to reconcile my beliefs with those of what the democratic party has become.
Link Posted: 10/1/2004 3:23:30 AM EST
[Last Edit: 10/1/2004 3:26:01 AM EST by ArmdLbrl]

Originally Posted By SWO_daddy:
There is a subtle, but definite, anti-conservative undertone in the editorial comments interspersed throught that article.



Thats funny because I got linked to it by Drudge, he is the one with the quote about sex orgies splashed across his front page

And one of the UK papers already has a definite attack piece out: www.guardian.co.uk/usa/story/0,12271,1317386,00.html
Link Posted: 10/1/2004 3:28:00 AM EST
Gonzo, when you met Scalia did he remind you of Danny DeVito? I've also met him, and that was my impression of him-- a really fuckin' smart Danny DeVito.

Link Posted: 10/1/2004 3:47:07 AM EST

Originally Posted By -Duke-Nukem-:
Gonzo, when you met Scalia did he remind you of Danny DeVito? I've also met him, and that was my impression of him-- a really fuckin' smart Danny DeVito.




LOL, that's not a bad point. I tell ya, the guy was a fucking brilliant conversationalist. I sat talking to him for at least an hour (during which time we both knocked down a few Left Hand Ales! ).

The guy is a smart cookie, though. But his attitude and personality is not too far off from DeVito!
Link Posted: 10/1/2004 4:37:33 AM EST

Originally Posted By GonzoAR15-1:
The 17th Amendment is one of my expertise areas. I've even published on it, but I won't provide any links in light of my comfortable anonymity.

It was a mistake.

Before the 17th Amendment, Senators were chosen by a joint session of the legislatures of each state. I've actually pulled legislative journals of the Senatorial votes in Colorado, and seriously, that's exactly what happened: The States' House and Senate combined into a single session and voted for the senator slot that was up for election.

This made senators accountable purely to that STATE's particular issues ACROSS the whole state, as opposed to as determined by pure population size votes in the metropolitan centers (i.e., the way that Denver dominates senatorial elections just on raw numbers). It created a magnificient balance in terms of states rights and federalism. After the 17th amendment, the Senate became merely a smaller version of the House of Representatives but with the senators effectively more beholden to the large population centers and not the spread of districts as apportioned by the states for their assembly seats, and it has been damaging. Also, because each state has a different ballance between its House and Senate size (and some like Nebraska just don't have two houses), the weight given to the State's political balance as a whole under that state's constitution came into play a lot more. If that state's districting and constitutional scheme had a ton of rural districts (and thus a great deal more republican representatives), then those representatives voters would yeild more power under a pre 17th amendment scenario than they would when they have to try and compete with huge population centers. Again, some interesting checks and balances built in.





You beat me to it, that's exactly what I was going to say (perhaps a lot less eloquently )

Democracy is the tyranny of the majority and democracy is nothing more than mob rule.
Link Posted: 10/1/2004 4:44:20 AM EST

Originally Posted By GonzoAR15-1:
The 17th Amendment is one of my expertise areas. I've even published on it, but I won't provide any links in light of my convenient anonymity.



There ! I fixed it for you !
Link Posted: 10/1/2004 4:46:28 AM EST
Indeed you did.

But I tell ya what.: If you doubt my research into the 17th Amendment, I'd be glad to debate ya on the topic. I promise we won't even have to use any of the Bush/Skerry rules!

Link Posted: 10/1/2004 5:01:41 AM EST
If you want to hate on a SCJ do it on Ginsburg or Souter or something. Leave the good ones alone.
Link Posted: 10/1/2004 5:15:54 AM EST
So I take it Scalia supports "Stuff her in the Pooper and Post Pics" on a grand scale.
Link Posted: 10/1/2004 6:20:59 AM EST
[Last Edit: 10/1/2004 6:22:32 AM EST by LonesomeHawk]

Originally Posted By GonzoAR15-1:
The 17th Amendment is one of my expertise areas. I've even published on it, but I won't provide any links in light of my comfortable anonymity.

It was a mistake.

Before the 17th Amendment, Senators were chosen by a joint session of the legislatures of each state. I've actually pulled legislative journals of the Senatorial votes in Colorado, and seriously, that's exactly what happened: The States' House and Senate combined into a single session and voted for the senator slot that was up for election.

This made senators accountable purely to that STATE's particular issues ACROSS the whole state, as opposed to as determined by pure population size votes in the metropolitan centers (i.e., the way that Denver dominates senatorial elections just on raw numbers). It created a magnificient balance in terms of states rights and federalism. After the 17th amendment, the Senate became merely a smaller version of the House of Representatives but with the senators effectively more beholden to the large population centers and not the spread of districts as apportioned by the states for their assembly seats, and it has been damaging. Also, because each state has a different ballance between its House and Senate size (and some like Nebraska just don't have two houses), the weight given to the State's political balance as a whole under that state's constitution came into play a lot more. If that state's districting and constitutional scheme had a ton of rural districts (and thus a great deal more republican representatives), then those representatives voters would yeild more power under a pre 17th amendment scenario than they would when they have to try and compete with huge population centers. Again, some interesting checks and balances built in.


I agree! Vote Libertarian! The first thing,was kinda weird.
Link Posted: 10/1/2004 6:32:55 AM EST

Originally Posted By LonesomeHawk:
I agree! Vote Republican! The first thing,was kinda weird.


fixed!
www.georgewbush.com
Link Posted: 10/1/2004 6:35:14 AM EST
Scalia's the greatest SC Justice and way smarter than any fuckface reporter.
Link Posted: 10/1/2004 7:26:37 AM EST

Originally Posted By GonzoAR15-1:
Indeed you did.

But I tell ya what.: If you doubt my research into the 17th Amendment, I'd be glad to debate ya on the topic. I promise we won't even have to use any of the Bush/Skerry rules!




Your info or expertise on the 17th Amendment is not the issue and if you will read again what I said, that should be apparent. Research can be done on any subject by anybody (especially on the internet). This often enables someone to pose as whatever( or whomever) they desire and do so with credible and verifiable facts but they still aren't what they pretend to be. Why not just make your case or pass along the info without the drama of "I'd tell you who I am but I will have to kill you if I do. "
Link Posted: 10/1/2004 8:07:45 AM EST
[Last Edit: 10/1/2004 8:09:13 AM EST by TheAvatar9265ft]
Let's not fool ourselves on the states rights and general distribution of whom a Senator is/was beholden to. Yes the massive population centers hold major sway now. Do you really think it was better when a bunch of politicians got together to choose a politician? Whom do you think they would choose? The most senior and vicious politician who is best at gathering dirt and twisting arms? Not that he other system is a whole lot better but I don't think it makes a huge difference. Whats better... a popularity contest judged by the politicians or a popularity contest judged by the masses?

Guess which countries use which methods? (I'll give you a hint... European countries work with politicians choosing politicians)
Link Posted: 10/1/2004 8:10:51 AM EST
The 17th Amendment was a bad idea. Before that, state legislatures had much more control over the workings of the federal monster. Direct democracy is always a bad idea--it never achieves what people expect it to. State legislatures were in a far better position to ensure accountability than the people are.

Just look at all the worthless asshole Senators we have in office right now--John Kerry? John Edwards? Ted Kennedy? Feinstein? Boxer? Schumer? Daschle? Oh, and just to be fair--Libby Dole? Give me a break. Libby Dole does not belong in office. Neither does John McCain.
Link Posted: 10/1/2004 8:32:40 AM EST

Originally Posted By thelibertarian:
The 17th Amendment was a bad idea. Before that, state legislatures had much more control over the workings of the federal monster. Direct democracy is always a bad idea--it never achieves what people expect it to. State legislatures were in a far better position to ensure accountability than the people are.

Just look at all the worthless asshole Senators we have in office right now--John Kerry? John Edwards? Ted Kennedy? Feinstein? Boxer? Schumer? Daschle? Oh, and just to be fair--Libby Dole? Give me a break. Libby Dole does not belong in office. Neither does John McCain.



I cannot believe you didn't mention Hil. Clinton...
Link Posted: 10/1/2004 8:33:16 AM EST
Wow. Just Wow.
Link Posted: 10/1/2004 8:36:33 AM EST

Originally Posted By thelibertarian:
The 17th Amendment was a bad idea. Before that, state legislatures had much more control over the workings of the federal monster. Direct democracy is always a bad idea--it never achieves what people expect it to. State legislatures were in a far better position to ensure accountability than the people are.

Just look at all the worthless asshole Senators we have in office right now--John Kerry? John Edwards? Ted Kennedy? Feinstein? Boxer? Schumer? Daschle? Oh, and just to be fair--Libby Dole? Give me a break. Libby Dole does not belong in office. Neither does John McCain.



I'm sure there were never douchebag senators in the past.

RIIIIIGHT

Logically fallacy. Bottomline is are the Senators beholden to politicians or directly to the public?

Most libertarians I know don't want politicians making too many decisions for them. I certainly wouldn't want a politician (especially one I didn't or didn't have the optoin to vote for) deciding who my national representative should be.
Link Posted: 10/1/2004 9:35:16 AM EST
[Last Edit: 10/1/2004 9:37:10 AM EST by GonzoAR15-1]
Bill,

I wish I were in a position (both personally and with my employer) where I could cast aside the anonymity of the internet and post in my true name, as presumably you have done. But the reality is that firearms are controversial, the positions I espouse on this and other boards are controversial, and I am in the middle of a custody battle. I appreciate your comments regarding armchair commandos armed with google, but I have yet to locate online copies of Joseph Story's records on the constitutional convention, or the numerous other historical materials I research in preparing an article on the enactment of the 17th amendment. So as to show my good faith, however, I'll make available via P.M. to anyone who asks selected excerpts regarding the fascinating history associated with this bit of constitutional garbage. I need only find the original document this weekend on my old document disks.

To the poster who thinks direct election means nothing, take a look at this table and give the number some thought in terms of some of the "hot" Senate races this term.

www.ncsl.org/ncsldb/elect98/partcomp.cfm?yearsel=2004

Look, for example, at my home state of Colorado, in which the Democrat to Republican representation in the state house is currently 28 Dems to 37 Repubs in the House, and 17 Dems to 18 Repubs in the State Senate. If, as before the 17th Amendment, Colorado's senators were picked by the State Legislature, the breakdown of a joint session vote would be 45 Dem votes to 55 Repub votes. Easy, slam-dunk win for Peter Coors (Republican) even if more than ten percent (10%) of the republicans voted for Salazar. Yet, under the current system these guys are within a single point of each other in the state polls? Why? Because the statewide vote is skewed by Denver/Boulder democrat concentrations, which dilutes the voting power of all the voters in the rural areas. And someone who is accountable to representatives for these rural areas in the pre 17th amendment way would certainly be better expected to represent the interests of the state, as a whole, as compared to someone who banks on the liberal votes of the two major left leaning metropolitan areas.

Want to see something really interesting? Look at this, which shows the Senate seats that are up this term/election: www.nrsc.org/nrscweb/races2004/senate_map_2004.pdf

Run some of the numbers from the state-house breakdowns from the above link and you'll see some interesting results. Florida, for example, which is an open seat formerly held by a democrat would be a republican lock for a replacement senator. And, I would argue, that would be more representative of the state's composition as a whole than the neck and neck race for a replacement right now under "popular election" might suggest. See how much of an additional "state" oriented component the 17th amendment did away with?

Fun stuff, no?



Link Posted: 10/1/2004 9:43:04 AM EST

Originally Posted By GonzoAR15-1:
Bill,

I wish I were in a position (both personally and with my employer) where I could cast aside the anonymity of the internet and post in my true name, as presumably you have done....




Put it this way, it would have been less presumptuous, if you would have just stated your position and left it at that. As for me posting in my real name, I live in Tipton IN and I'm in the book. Stop by if you are ever in the area.
Link Posted: 10/1/2004 6:55:01 PM EST
One possible explanation. A stupid or dishonest reporter. Maybe both.


national review online - the corner
"Friday, October 1, 2004"

"RE: SCALIA [Stanley Kurtz]

Kathryn, re the Scalia remarks, I just received the following comment from Ed Whelan, President of the Ethics and Public Policy Center in Washington DC, ... :

Justice Scalia gave a speech here on Sept. 20. ... In that speech, he made the point that even if one were to adopt arguendo the assumption that orgies are socially beneficial, that assumption wouldn’t entitle judges to strike down laws against orgies. As a former clerk of his, I am certain that he made this same arguendo point at Harvard. Evidently it was a tad too subtle for the Crimson reporter."



arguendo. prep. Latin meaning "for the sake of argument," used by lawyers in the context of "assuming arguendo" that the facts were as the other party contends, but the law prevents the other side from prevailing. hinking.gif

Link Posted: 10/2/2004 8:29:02 AM EST
SCALIA ...[Stanley Kurtz]

... Of course, the remarks were taken out of context, exactly as I and Ed Whelan have said.

Apparently, Justice Scalia has made a copy of the speech available to the Supreme Court's public information office strictly for purposes of clarifying the misinterpretation of the lines in question.

....
Posted at 10:03 AM


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