Local lawyers speak on Scalia's death

"He was an extremist on torture and concentrated wealth," says one

Supreme Court justice Antonin Scalia has died, and commentators believe the Senate battle over his replacement may dominate the presidential race. Scalia was a bedrock conservative, who believed that a constitutional question should be determined by looking at the founding fathers' intentions. Scalia was beloved of conservatives but scorned by liberals and progressives.

Bruce Henderson, a conservative San Diego lawyer, says Scalia "was an extraordinary voice for understanding the constitutional context in which it was created by the founding fathers. He was also one of several leaders on the court; he could bring other votes with him."

"Both the House and the Senate have a majority of Republicans," continues Henderson. "The struggle to replace [Scalia] should be monumental" and may dominate the presidential race. "The likelihood of Obama appointing anyone who could attain approval of the Senate is probably zero and none."

Says Henderson, "I don't think any justice on the Supreme Court was more aligned with the common man's interest. I think of Scalia the way I think of Teddy Roosevelt, a conservative fundamentally concerned with making government work for the people. Scalia was more like a libertarian, [feeling] it is imperative that we constrain [the government's] reach, but let it engage in essential functions of government."

Mike Aguirre, a liberal/progressive who has worked for Henderson (they are friends), differs greatly on Scalia: "He was completely committed to his personal point of view and making that point of view into law. He was an extremist on torture and concentrated wealth."

Aguirre believes Scalia was an advocate for concentrated wealth, and Henderson disputes that view. Scalia "helped to destroy the voting rights laws, the right to bring class actions. He said aiding and abetting fraud was okay.”

Aguirre believes Obama should appoint a moderate immediately to the court.

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A savvy New York Times commenter tonight suggests that Obama legitimately has until February 22 to make an interim appointment to the Supreme Court when the presently recessed Senate returns to work. What a great idea.

Scalia was arrogant and inexcusably rudely dismissive of other points of view, but he enjoyed center stage and displayed a cutting wit from the bench. His constitutional "originalism" was nothing more than living in the legal past.

monaghan: Yes, Scalia was witty. Personally, I agree with Aguirre: Scalia tried to embed his personal beliefs into the law.

I hope that Obama can make an interim appointment to the court. There are some important cases waiting.

In my opinion, it is regrettable that Republicans are saying that they will block anybody Obama names. The presidential election is going to be very exciting, because it appears that people will not just be voting for a president. They will be voting on which way the Supreme Court will lean, possibly for a good many years. Best, Don Bauder

Ask Henderson if he believes that nobody has ever been smarter since than the Founding Fathers. That is, has he heard of concepts like intellectual discipline and integrity and the idea of getting at the truth over blind precedent?

Flapper: It will be interesting if strict constructionism becomes a major battleground in the 2016 presidential race. At this juncture, I believe it will. Best, Don Bauder

Flapper: To my knowledge, Bruce Henderson is not a contributor to this blog, other than he is one of the persons I consult on matters such as a stadium subsidy. Henderson, who realized in 1995 that the Chargers wanted to leave, has been right all along on these stadium subsidies. Best, Don Bauder

I've long recognized that Henderson is a smart fella, if a bit boyish in his manner (not a bad thing). But I have real trouble squaring his intelligence with strict constructionism, the idea that the Founding Fathers' great ideas at the time can't be improved upon, thus consigning the future to the past.

I continue to believe that "blogs" (such an unfortunate moniker) such as yours could form a form of forum wherein we could advance from just spouting off and progress into the better habit of taking issues to logical conclusions bereft of ideological bias. In science, hypothesis-testing consists of attempting to DISPROVE the hypothesis rather than proving our assumptions. Unfortunately, this does not happen, at least not frequently, even on this exemplary blog, which, while it remains informative because of your reporting and the excellent minds it attracts, does not often ascend to the challenge of actually arriving at logical conclusions. Like any good lover, I accept it for what it is, and do not demand it to fully meet my expectations, but I do hold out hope for what it could be.

Is there a life after blog?

Flapper: I am hardly a strict constructionist, but a lot of intelligent people are (or were in the case of the late Antonin Scalia.) Back in the 1960s, when liberalism dominated American politics and intellectual discourse, some liberals dismissed conservatives as dumbbells. That is certainly not true today. Best, Don Bauder

There are dumbbells enough to go around. I am almost as disgusted with the far left as I am the far right. Do you suppose that's why elections are close? Tweedle-dum and tweedle-dee?

Flapper: It's possible that the 2016 election will pit someone on the far left (Sanders) with someone on the far right (Cruz). Usually candidates tack to the center in the presidential election, but they might not this time because of the constituencies they serve. The Supreme Court balance could become one of the major issues of the campaign. Best, Don Bauder

I think the election is the Democrats' to lose. But if the politically correct left continues to pursue "zero-tolerance," they probably will. I do not consider Sanders "far" left, despite his foolish self-characterization as a socialist. Hilary's crowd, however, is festooned with loony "liberals."

Flapper: I think Sanders is quite far to the left on the United States spectrum. That is not an argument against him. Best, Don Bauder

He does not appear to be a self-righteous, narcissistic, politically-correct type who wants CONTROL, Soviet-style, as far too many Democrats, particularly in academia, do.

Flapper: I agree that Sanders is, happily, not one of the liberals that threaten free speech. Best, Don Bauder

The Founding Fathers' explicitly crafted a Constitution able to grow and accommodate situations they could not, so that it would not become obsolete. That is why the Bill of Rights was so quickly added.

Scalia's prejudiced interpretation of those first ten amendments, his refusal to grant real authority to the 13th, 14th, and 15th Amendments, and especially his extra-Constitutional maundering in Bush v. Gore, demonstrates that his mindlessly repeated 'intellectual rigor' was nothing more than unwavering petulance.

Let us hope the Supreme Court never sees his like again.

Right wing conservatives do not want any changes and want to adhere to the Constitution as long as it suits them. If Conservatives had their way they would put gays and lesbians back in the closet, destroy environmental laws, labor laws, consumer protection laws, access to legal redress (if you are poor), voting rights, abortion, equal pay for equal work (only union contracts provide equal pay for equal work), public education, Social Security, Medicare and any other law or government program that benefits people. Conservatives want all the power concentrated in the very wealthy and corporations. They want to destroy the middle class.

AlexClarke: Unfortunately, your summation has a ring of verisimilitude. Best, Don Bauder

Cassander: Here is a Scalia statement that could become a rallying cry in the 2016 election: "Mere factual innocence is no reason not to carry out a death sentence properly reached."

That extremely disquieting quote, as well as Citizens United, the worst decision in the history of the court, could become campaign issues. (I realize Roberts was the main manipulator behind Citizens United.) Best, Don Bauder

Well put, Cass. May I suggest that the FF's, like any good composer of music, EXPECTED future musicians to execute her or his graphic layout of mere notes (principles) into whatever grooves happened to magically manifest themselves? I suggest also that not only did those Founding Composers EXPECT a merging of future minds with their creations, they DEMAND, by the nature of their music, that those Future Minds bring their work into full flower, EXPANDING it into other realms of being. Rigor, unfortunately (but logically) casts past excellence into a straight-jacket of mere conformity, rather than transform it into a launching pad from which humanity might soar. IF it has the guts to free itself from the Gordian Knot of obeisant rigidity of mind.

"Turn him to any cause of policy, The Gordian Knot of it he will unloose, Familiar as his garter" (Shakespeare, Henry V, Act 1 Scene 1. 45–47)

I feel no anger toward Scalia; he was, like all of us a Prisoner of (his particular) Context. Out of the "laughter and travail" of human existence. "The slings and arrows of outrageous fortune." No one of us is so large as to be deserving of worship. Let us cast no stones but heal the hurts of those less fortunate, eh? What is the alternative? To stone them unto death, you say? Because they didn't see it your way?

Flapper: Trouble is, the succeeding composer often does not improve on the compositions of the master, but goes off in a wrong direction. Take, for instance, Johann Sebastian Bach. He was the one who brought the baroque era to a height that could not be matched.

His sons (CPE Bach is best known) thought their old man was a fossil, a dinosaur. The sons would lead music in a new direction. They didn't. Their music didn't come close to the exquisiteness of their father's music. It took Haydn and Mozart, and early Beethoven, to take music into a new, great era.

In fact, I believe (this is personal) that the post-Schoenberg composers have been, for the most part, inferior. Atonal music has been around more than 100 years and for me, they were generally wasted years.Best, Don Bauder

I personally know of great modern and original composers who were rejected during the atonal inquisition. I remember hearing my first atonal "sym-phony" and half-sat up to free my considerable diaphram and booing as loudly as I could whilst the rest of the audience gave a standing ovation.

I re-read my post, lest I erred in my statement, but yea, could find none. Perhaps it is the myopia of narcissism; wouldst thou point out to me where I implied that every interpreter of Bach would "improve" upon the original score and not go off into the weeds? Listen, for example, to John Williams' guitar and explain to me where he went wrong in his interpretation.

And here I expected to be scalded for my remarks a la Scalia!

Flapper: I interpreted your remarks to mean that a great composer would expect his style to be improved upon in the future. In the case of Bach, one could argue that he was never improved upon -- he was the greatest composer of all time (my view, although it may be a plurality among musicologists).

It's rather unsettling that a composer born in 1685 has never been surpassed.

If I misinterpreted your remarks, please let me know. Best, Don Bauder

Not that his "style" would be improved upon, but that that his notes were intended by him (and other great composers) as a framework upon which to expand. They might make a mess of it or they might reach new heights, but they would not simply play the notes sans all nuance, they would bring it alive, much to the composers delight.

Not Bach, but try this one on for size and compare to more mediocre performances. https://www.youtube.com/watch?v=EAZOETtWiqQ

Of the paintings at Lascaux, Picasso said something like "we have learned nothing in twelve thousand years." But those composers were also their own orchestras.

Perhaps it is semantics, but I would say that Bach's notations may not be improved upon, but the "genius" must be compounded by going beyond the notes. Go back and look at "Mao to Mozart." To the place where the little prepubescent Chinese girls were lined up to play for the American Master. One little girl was selected, and when she was finished, Stern said gently to her something like, "You played that to near technical perfection--now, hum it for me." She did. Then Stern said, "Now, play it the way you hummed it!" She did. It was a transformational moment.

Flapper: I sometimes shock people by saying that the two best composers of Italian opera were not Italian: Mozart (Marriage of Figaro, Don Giovanni, Cosi fan tutte) and Handel (Alcina, Julius Caesar in Egypt, Rinaldo, Orlando), but that gorgeous Puccini aria from Butterfly is a persuasive refutation of my argument. Best, Don Bauder

I agree that Johan need take no Bach seat to nobody, but some of the angels on the head of this pin include Italians, Spanish, even Scandinavias, "even" Persians, Indians, Chinese, Japanese--the world of music is a place of living, blooming, exploding emotion.


Flapper: Yes, but Stalin didn't approve of the music by Shostakovich. Look what the Russian aristocracy forced Tchaikovsky to do. (Take his own life.) But it had nothing to do with his music. Best, Don Bauder

too bad he could not exercise some self control when it came to eating and fitness

30+ years on the Supreme Court may have taken its toll on his physical health. An autopsy may shed some light on the cause(s) of his demise. I believe stress, in an environment where adversarial arguments is the norm, took Justice Scalia prematurely.

JustWondering: Stress may have hastened his death. However, he was so cocksure of the rightness of his opinions, and he so often belittled views he did not share, it seemed like he had less stress than other court members. Best, Don Bauder

The death certificate for Scalia will list myocardial infarction — a heart attack — as the official cause of death, Presidio County Judge Guevara told WFAA-TV on Sunday.

Ponzi: I am sure most people think he died of a heart attack or stroke. That is the most logical argument. But I don't understand how a county judge could have made that pronouncement on the same day Scalia died. Did the coroner come out on Sunday? Best, Don Bauder

Murphyjunk: As I comment at this time (Sunday morning), I have not heard what Scalia died of. The coroner's report may come out this week. Clearly, he did not appear to be in the best of shape. He was corpulent. Best, Don Bauder

IMHO persons in positions like his have an obligation to stay healthy to perform their jobs

Murphyjunk: I'm not sure that people in positions like Scalia's have an obligation to stay healthy. For one thing, I have known a number of people who exercised diligently, followed the right diets, avoided dangerous activities such as smoking -- and then died suddenly, often relatively young.

I can see your point of view, but it seems to me we all should work to stay healthy for the sake of ourselves and our immediate family and friends. I don't know that we should stay healthy for the sake of our jobs. Best, Don Bauder

Yes you should, Don. We want you around for at least another twenty years. You come from good Scandahoovian stock, eh? For sure!

As to Scalia, since his descendants are legion, they might make a good epidemiological study. One could perhaps tease out whether genetics or culture (too much pasta; not enough wine, or vice versa?).

Flapper: I am a mixture of English and German blood, a bit more on the English side. The name is German, however.

My mother's ancestors came to America early -- they were in the Boston Bay Colony in the 1630s. Two brothers came from England: one was hanged for killing Indians almost as soon as he got to America. I have always said I would rather have descended from somebody who was hung than somebody who was hanged.

My father's side showed up in upstate New York from Germany in the 1730s. The progenitor charged that his wife was a witch. She charged that he was a child abuser and a drunk. She disappeared. Best, Don Bauder

President Obama will probably nominate a Moderate Judge to replace Scalia One of the potential successors is the Indian-American judge Sri Srinivasan. Srinivasan was appointed 2 years ago to the DC Court of Appeals which is considered a "feeder Court" to the US Supreme Court.

Noteworthy, Srinivasan was approved just 2 years ago by the US Senate for the DC Court of Appeals by a 96-0 Vote.

The Senate and Republicans will have a hard time explaining to the voters how and why they rejected a Justice for the US Supreme Court hat they already unaminously approved just 2 years ago

Rejection of Srinivasan or a similar Judge could cause a backlash against Republicans at the polls in November 2016 for not only the WH, but the US Senate and the Congress.

SportsFan0000: It is hard to judge how the electorate will react to any battle over confirmation of an Obama appointee. In some ways, the Republicans could benefit, in other ways the Democrats could gain. Best, Don Bauder

SportsFan0000: That is a good point, although he was being appointed to an appellate court, not the highest court. What are his views? Best, Don Bauder

He is a moderate Democrat. Father was a mathematician in Kansas. He played basketball on same team as Danny Manning in HS in Kansas. Earned JD/MBA from Stanford University. Clerked for Sandra Day O'Connor Was Trial Attorney for Major DC law firm. Taught Supreme Court and Appellate Advocacy at Harvard Law. Was appointed US Solicitor General. Then Appointed Federal Judge by President Obama. Has support of both Republicans and Democrats\ when appointed to DC Ct of Appeals from where many Supreme Court Justices have been elevated to the Supreme Court.

SportsFan0000: Yes, he looks quite interesting. However, the first candidate Obama puts up will almost certainly be rejected. Maybe Obama should save Srinivasan for later. Best, Don Bauder

I'm leaning towards a win situation for the Democrats if every nominee is rejected. Greater numbers show up during a presidential election and this is too big of a deal to not show up at the polls. I could even see a Sanders win if it gets real ugly in Congress. Can see shortened voting hours and reduced number of voting booths in certain districts across this country once again.

brianakathedude: Like you, I am inclined to think the Democrats will gain if the Republicans knock down Obama's nominations to the court, one by one, and keep insisting that naming the replacement for Scalia should be left to the next president. I could be wrong on that, however. Best, Don Bauder

"Justice Scalia Dead Following 30-Year Battle With Social Progress"

The Onion

Sadly, there could be some truth in that headline. As with any "battle" a toll is always taken in one form or another.

Ponzi: The Onion can be so delightfully nasty. I want to point out that the publication was founded at the University of Wisconsin-Madison. Best, Don Bauder

That's your Alma Mater. I didn't know the Onion was established there.

On the subject of Scalia. He was a masterful wordsmith and consistent in the development of his opinions. He was a polarizing figure. I was not in agreement with his views. Nonetheless, he should be recognized for his long service and dedication to his calling. RIP

Ponzi: He is being honored as you wish. Best, Don Bauder

JustWondering: The toll is sometimes called "collateral damage." Best, Don Bauder

Social (i.e., cooperative) behavior is what made it possible for the weakling misfit, Homo (cocksure) sapiens to survive. Culture (competition) began displacing society about 15,000 years ago, causing a population boom. That will eventually turn out to be a "bust," leading to a bottleneck or extinction.

Flapper: You may be right. I won't be around when you are proven so. Best, Don Bauder

The species that have lasted the longest are the smallest. And the most "accepting" of what they have.

Remember the battleship curves from biology?

Flapper: The species that last the longest are the most adaptive. Best, Don Bauder

Not necessarily. You've got part of it right, but that's not the whole picture. If the environment to which they are adapted does not change (for, say 3-4 billion years) you don't have to change to last. Those that adapt to environments that change quickly don't last, but yes, those which adapt quickly enough to keep up with change, do. And they become something else. If you're a bacterium, say, a methanotroph, all you need is a little methane and you're in business. I hope someone is checking the big gas leak site near the San Fernando Valley for changes in methanotroph population changes. It also helps if you can encyst yourself to wait a long, long time for another dose of methane, too. Maybe even long enough for a hit from an interplanetary object and go off to populate other planets . . .

Flapper: Would Sempra let objective scholars study the effects of the gas leak? Best, Don Bauder

Flapper: Don't look at me. Best, Don Bauder

Don - perhaps in your next life you'll become a Supreme Court Judge. There was some argument made that when it was created, life expectancy was only 50 so there's more cause for term limitation now.

I like it the way it is. It is the best attempt to keep it from becoming more political. Judges with life tenures can make unpopular decisions. Their wisdom should be rewarded, not discarded. These folks usually didn't climb to their posts with politics. We should not encourage them to establish a political mindset.

Ponzi: Agreed. Judges who have to be reelected every so often make decisions with one eye on the electorate's predilections. Best, Don Bauder

Ponzi, this group could take your statement as one of principle, either accept it or challenge it, and move from there to, presumably, a more refined conclusion. At this moment, however, I find it sufficiently pure in its present form. You might, however, wish to re-state it in CAPITAL LETTERS suitable for a masthead.

shirleyberan: If nominated for the Supreme Court, I shall not run, and if elected I shall not serve. Best, Don Bauder

President Obama could make a "Recess Appointment" to fill the seat immediately. Senate then would have 1 year to confirm or reject the appointment while the Recess appointment was on the Court hearing and deciding cases. It has been done before. Eisenhower made Recess Appointments of Supreme Court Justices including Potter Stewart, William Brennan, Earl Warren.

SportsFan0000: This subject has come up on this blog. Can Obama make a recess appointment to the Supreme Court? I don't know the answer. Best, Don Bauder

President Obama could appoint Jesus Christ to the Supreme Court and the right wing conservative bible thumping Republicans would not affirm the appointment. It will be interesting to watch how the not-too-bright average voter reacts to the stonewalling of any Obama appointment. I guarantee that if this situation were reversed and the President was a Republican and the Dems were vowing to block any appointment the Repubs would be going crazy. As for the Dems unless the House changes its majority no matter what Democrat is president we can look forward to four or eight years of gridlock.

AlexClarke: I am afraid you are right. Partly because of gerrymandering, we may have gridlock for many years. Best, Don Bauder

Sorry to disagree with everyone's rousing and joyous rendition of "Ding Dong the Witch is Dead" as you spit on Scalia's grave.

But frankly I hope the GOP does block any nomination of a new justice unless that justice can promise that they will uphold the plain meaning of the "take Care that the Laws be faithfully executed" clause.

If Obama's ridiculous executive order on amnesty is upheld it will set a terrible precedent that will forever give the POTUS the ability to invalidate almost any law by ordering that law to not be enforced.

ImJustABill: I think any candidate for the high court would make that promise. I'm told that in his confirmation hearings, Scalia claimed he had no personal agenda, etc. etc. Best, Don Bauder

Upon this day of Scalia's burial, let us try to understand just why he and so many others believe that the Founding Fathers were infallible.

There's enough talent right here to resolve this question.

Flapper: I think it is quite likely that very religious persons, like Scalia, who believe the Bible is the word of God, also believe that the founding fathers were infallible. Best, Don Bauder

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