Bench Memos

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Response to Hit Pieces on Scalia -- Part 2


I’ve already addressed the first two charges that Adam Cohen makes in his recent New York Times (online-only, TimesSelect-restricted) hit piece on Scalia.  Cohen’s third charge is that Scalia’s public statements “often make him sound more like a political partisan than a judge.”  Cohen contends that Scalia “is particularly bad on the subject of Bush v. Gore.”  Let’s examine Cohen’s evidence. 


Cohen complains that, in response to a question about Bush v. Gore at a recent event in Switzerland, Scalia said that “if all the votes that Democrats had wanted counted were indeed counted, ‘They would have lost anyway.’”  According to Cohen, the “important point is that no one will ever know who would have won if all the votes had been counted.”  But what Scalia actually referred to was the comprehensive review that a consortium of newspapers, including the New York Times, conducted of all uncounted Florida ballots.  That review established that every counting method that was requested would have resulted in a Bush victory.  Is Cohen really unaware of this review?


Cohen also complains that Scalia responded to the question about Bush v. Gore by stating “Get over it.”  (Kenneth Jost, in his similar CQ Weekly attack on Scalia, makes the same complaint.)  Scalia supported his remark by pointing out that “this was an election ago now,” by referring to the newspapers’ comprehensive review establishing that Bush would have won under any plausible recount, and by noting that seven justices had agreed that there was an Equal Protection violation.  These seven justices included Clinton appointee Breyer and the liberal Souter, though Breyer and Souter disagreed with the majority’s remedy.  Interestingly, Cohen obscures the 7-justice vote finding that the recount in which the Florida courts were engaged before Supreme Court intervention was unconstitutional.  He instead simply asserts that the “case broke down sharply along partisan lines.”


Memo to Cohen:  Get over it.

Cohen’s second piece of evidence is that Scalia told another questioner in Switzerland who Cohen says “was asking about the dishonesty of American presidents” that “we really don’t like our presidents fooling around in the Oval Office.”  I’ve watched the relevant portion of the video of the event, and what Cohen misses is that Scalia was defending Americans against what he quite reasonably regarded as the questioner’s “diatribe against America.”  The questioner said that Europeans have the “impression that [in America] if you are powerful enough … you can get away with whatever you do.”  Scalia defended Americans by pointing out that they regard as scandalous what Europeans hardly blink at.  He illustrated his point by citing a French official’s widely known use of government funds on behalf of his mistress.  It was in this context that he contrasted Americans’ reaction to the Lewinsky episode (which also involved misuse of government property).  Cohen is correct that Scalia was “not giving a legal answer to the question,” but the question (or “diatribe”) to which he was responding was broadly cultural, not specifically legal.

In short, Scalia was being overtly pro-American, not speaking as a partisan within the framework of American politics.  Cohen’s own politics may lead him to think that being pro-American is being “right-wing,” but that would say far more about him than about Scalia.

Tags: Whelan


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