I believe the rules of the debate state that I get 30 seconds because I was mentioned by name in Mr. Black’s column today. And so I will try to be brief (but will likely violate the 30-second rule). First, Mr. Black’s disillusionment with the justice system is understandable. As I wrote a few days ago in comments to my own post, “I found the prosecution of Mr. Black horrific, and without following all the details, likely a great miscarriage of justice. If Mr. Black were unduly sensitive to abuses in the justice system, it would indeed be understandable.” Today’s column confirms that that is the case. His is but one example of overzealous prosecutors charging standardless crimes.
Scooter Libby’s prosecution (from which I was recused in my role in the vice president’s office because my former law firm had represented a witness in the investigation) is another example of the same prosecutor overstepping to ruin a good man. Patrick Fitzgerald knew from the outset of his investigation who had leaked information regarding the identity of Joe Wilson’s wife, and it was never Scooter Libby. But Libby was charged and convicted of crimes (perjury/obstruction) committed only because the investigation occurred in the first place. That such a crime might be provable is not a compelling reason for the prosecutor to charge, and we count on good prosecutorial judgment to prevent such excesses. It is correct that that prosecutorial judgment is sometimes sorely lacking.
But my point was — and remains — that, in targeting Justice Scalia, Mr. Black’s ire is misdirected. Scalia, of course, was one of the justices who voted to reverse Mr. Black’s conviction for violation of the federal “honest services” statute. Scalia went even further than the majority opinion and reasoned that the crime of deprivation of honest services was unconstitutionally vague, the very sort of judicial check on runaway prosecutions that Mr. Black decries as lacking.
Mr. Black suggests that I missed his point, but then confirms that he is “disappointed in what I do consider to be ‘inconsistency’ (Coffin) in some of the justice’s legal and theological views,” which is precisely what I took to be his point. He then suggests that, “like Chamberlain returning from Munich and waving aloft his peace pledge with Hitler” (I’m not sure I should take as much umbrage at that amusing analogy as should Justice Scalia), I take too much comfort in Scalia’s vote to affirm the constitutionality of the federal partial-birth ban. Here, Mr. Black misses my point. I was simply citing the most recent example of numerous opinions in which Justice Scalia has clearly stated that the Supreme Court has no business in overseeing state regulation of abortion. As Scalia has repeatedly noted, the Constitution simply does not speak to abortion regulation in any context, be it partial birth, parental notification, or indeed, a complete ban on the practice at any stage of pregnancy. So Scalia has been a model of constitutional consistency on the issue.
Like many who wade into these waters, Mr. Black also misses Scalia’s point. Justice Scalia is, from all accounts, a devout Catholic. But that is beside the point. Justice Scalia’s jurisprudence is a separate matter from his faith. He does not, as Mr. Black suggests, “invoke the precepts of his (and my) Church in aid of views he shares.” Instead, as Scalia has explained in many speeches (he tends to repeat himself!), “There is no such thing as a ‘Catholic judge,’ . . . The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. . . . Just as there is no ‘Catholic’ way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.” In reading the plain text of the Constitution, the justice does not read it through papal lenses; rather, he looks at the plain language of the document. And that document is silent on the power of the state to protect life.
But it is also quite explicit on the power of the state to take life. The due-process clause expressly contemplates that the state may deprive an individual of life, provided that that person has been provided due process. The only other limitation is the prohibition on “cruel” and “unusual” punishment, which, until the 1970s, had never been construed to prohibit the death penalty, only to prevent horrific practices in doing so.
Justice Scalia’s point is simply that there is nothing in his faith that prevents him from applying the letter of the Constitution on matters of life and death. Is there a guarantee in the Constitution that a truly innocent man will never be put to death? No, there is not. But the decision to seek the death penalty does not belong to him; it belongs to the state. And the decision to mete out that form of justice is left, by our system, to a jury of our peers, not Justice Scalia. There is nothing in the Catholic Church’s catechism that prevents him from carrying out his duties as a judge in death penalty cases. Indeed, his faith should compel him to respect the civic rule of law and apply its letter.
Scalia, more than most justices, understands that the entire Constitution (not simply the Bill of Rights) protects the individual from state overreaching. You won’t find, for instance, a more jealous protector of the rights of the criminal defendant to be confronted by witnesses against him than Justice Scalia. And Justice Scalia found the constitutional folly in the federal “independent counsel” statute well before the rest of the country caught up with him. That was an instance of Scalia’s reading of the separation of powers and unitary executive authority providing important political checks on runaway prosecutorial authority.
I do not begrudge Mr. Black’s bitterness at the “system.” But I do believe his vitriol is misdirected at Justice Scalia. He is not guilty, as Mr. Black intimates, of fiddling while Rome burns, but has been a rather zealous guardian of the very rights that Mr. Black holds so dear.