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For a long time now, I’ve been waiting with diligent patience to write three articles: One on the passing of former President George W. Bush, one on the passing of former Vice President Dick Cheney and one on the passing of now-former Supreme Court Justice Antonin Scalia.
The novelist Orson Scott Card developed, in his writings, an idea for someone known as the Speaker for the Dead. A Speaker does not spit-polish and shine the departed at the graveside, doesn’t eulogize inflated greatness or create a polite fiction to please and soothe. The Speaker tells the unvarnished truth about the one going into the ground: the good, the bad and the ugly.
Today, I stand as Justice Scalia’s Speaker for the Dead.
First, the good: Justice Scalia dedicated his life to public service and scholarship in the law. He met his wife, Maureen McCarthy, on a blind date in 1960 and died with his wedding ring still on his finger. The couple raised five sons and four daughters together. Among his boon companions was Justice Ruth Bader Ginsburg, who knew him from their shared days on the DC Circuit. The two made a long-standing ritual of sharing family dinner every New Year’s Eve. If Justice Scalia was not loved by most, he was surely loved by many.
The bad and the ugly, unfortunately, require more time in the telling.
Whatever Justice Scalia may have been to his family and friends, he was to the nation a wrecking ball. One may try to deny that he was a racist, a sexist, a homophobe, an unabashed authoritarian and in the end a simple, shabby ward-heeling Republican lackey. The black-letter truths about the man, buried in his decisions for the majority and the minority, as well as his oft-quoted public comments, tell the true tale. It is abundantly clear that Mr. Scalia approached his duties with a broad sense of entitlement, exclusion and venom. The man had a lot of hate in his heart, and it poured out onto the pages of his decisions in vigorous abundance.
Justice Scalia, by way of his argument in Bush v. Gore to stop the vote counting in Florida, was instrumental in giving us George W. Bush, which gave us Dick Cheney, Don Rumsfeld, Paul Wolfowitz, September 11, the ongoing Afghanistan War, WMD lies, the Iraq war with millions dead and maimed and displaced, the horror of ISIS, torture as accepted policy, surveillance as a fact of life, the assassination of constitutional law, absolute corporate rule, the disaster of Hurricane Katrina and the demolition of the US economy.
Why? Because of his interpretation of the “questionable legality” of counting all the votes cast. Teachers from now until judgment day will speak of Bush v. Gore in the way they speak of Dred Scott and Brown v. Board as pivot points in history, moments that changed the world. Scalia’s was not a positive moment, and bodies are still hitting the floor because of it.
Justice Scalia ruled in favor of Citizens United because, he claimed, the framers of the US Constitution would welcome the power and influence of modern billion-dollar multinational corporations, despite the fact that Jefferson and the others regularly railed against corporate power with militant vehemence. Hell, the Boston Tea Party was a protest against corporate hegemony.
Don’t tell that to Tony. “Most of the Founders’ resentment towards corporations was directed at the state-granted monopoly privileges that individually chartered corporations enjoyed,” he wrote in his concurrence. “Modern corporations do not have such privileges.” Yeah, right. Tell that to the tax man.
Justice Scalia ruled in favor of Hobby Lobby’s desire to discriminate against basically whoever they want because they think Jesus is whispering in their ear. In his dissenting opinion against same-sex marriage, he railed against the “civil consequences” of people who love each other consecrating their union.
When Anthony Graves, a Black man, was spared the death chamber by court exoneration in Texas, Scalia argued in dissent that Graves should still be executed because established proof of innocence should not upend a standing court decision, even if that decision is decisively proven wrong.
Justice Scalia ruled against a petition to drop a sodomy law directly aimed at the LGBTQ community, claiming the people in favor of the law were “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” Justice Scalia’s disdain for anyone not heterosexual has been well documented. “Of course it is our moral heritage that one should not hate any human being or class of human beings,” Scalia wrote in 1996. “But I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct.”
Murderers, serial infidelity, dog killers, cat stranglers … homosexuals. All “reprehensible” in the same pile. Justice Scalia was an equal opportunity despiser.
Last, but not least, the ugly: The passing of Justice Scalia after a Texas quail hunt with a pillow over his flapped face has perfectly deranged the 2016 GOP presidential race, the GOP majority in Congress and politics in general. The conspiracy theories are flying faster than barn swallows with a beakful of meth. OBAMA DID IT. Anything to turn a buck. Right, Alex Jones? If you didn’t exist, God would have to invent you just so people could have something to think about while taking a dump. Push, splash, wipe, flush, and so much for that.
You just have to love the instantaneous GOP reaction to Scalia’s passing. Obama can’t appoint a new justice in his last year in office – that’s unprecedented! (Justice Kennedy, nominated by Ronald Reagan, was voted to the bench in 1988, Reagan’s last year in office). Obama can’t make an interim Supreme Court appointment – that’s unprecedented! (The venerable Justice Brennan was an interim appointment back when the Senate enjoyed the presence of Joe McCarthy). History Fail, precedent Fail, in Technicolor.
Republicans in Congress are twisting themselves into strange rhetorical knots trying to argue against President Obama’s ability and duty to nominate Scalia’s successor. The issue came up in 2008, George W. Bush’s last year in office. At that time, Sen. Chuck Grassley said, “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” Now, he’s against it.
Sen. Lamar Alexander said back then, “Just because it’s a presidential election year is no excuse for us to take a vacation. And we’re here. We’re ready to go to work.”
Sen. John Cornyn said back then, “Now is the perfect time because, of course, we’re in a presidential election year and no one yet knows who the next president will be. What a unique opportunity to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.” Now, he’s against it, too.
The GOP candidates are falling all over themselves in a mad rush to keep the guy in the round room from nominating someone supremely qualified to screw up their plans to make being gay or a woman essentially illegal, to put a pistol in every pot, to shoot every undocumented immigrant on sight, to declare corporations the sole ruling entities in the nation, and to rain bombs and fire down upon the rest of the world for a tidy fee. Scalia’s open seat is what the 2016 election will henceforth be about: abortion, Planned Parenthood, LGBTQ rights, war and how far hate itself can go before it goes too far.
Justice Scalia, who was Reagan’s dying breath, hurt people. We will be 10 generations getting out from under his legacy. His impact beggars quantification, but cannot be denied. The man took a hammer and chisel to the best aspects of our civil society and did sore damage for decades. He thought he was funny. In the end, he was the joke.
Speaking of jokes, there is an old yarn about a man who would go to the newsstand every morning, buy a newspaper, scan the front page, growl, and then throw the paper away in disgust. One day, the paperboy who ran the stand ginned up enough courage to ask the man what it was he was looking for. “The obituaries,” the man replied. “But sir,” said the boy, “the obituaries are on page 30.” The man looked the boy square in the eye and said, “When the bastard I’m looking for dies, he’ll be on the front page.”
… and there he is. I can officially check one off my list. As for George and Dick, well … I contemplate Bob Dylan: “I’ll watch while you’re lowered down to your death bed, and I’ll stand o’er your grave ’til I’m sure that you’re dead.”