Thursday, October 05, 2006
The Weirdest Exercise In PC
MR. CROOKS: There is no supervision of people outside the United States, Mr. Chief Justice, but he is still subject to the jurisdiction of the District Court and still subject to the conditions of supervised release that are not dependent upon supervision.Now, Dahlia Lithwick, who covers the court for Slate, took extreme umbrage at this tragic insensitivity in a column she entitled "Tequila Mockingbird":
CHIEF JUSTICE ROBERTS: Like what?
MR. CROOKS: For example, he should not use alcohol, he should not associate with persons.
JUSTICE SCALIA: We have a case involving standing which says that — you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going — is going to apply having been deported from the country for criminal offenses, he is going to apply to come back — and look, these are ingenious exercises in the conceivable. This is just not the real world.
Justice Scalia says that "the doctrine of standing is more than an exercise in the conceivable. … Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States."Rhetorical body-slams? Is she for real? And hasn't she just belied her earlier statement about not knowing where the tequila comment should register? Wasn't Scalia's statement equivalent to commenting "Nobody really thinks your client is really, you know, abstaining from having one in the Biergarten in Berlin because because he is on supervised release here in the United States"? The point that Scalia is making is that the man is utterly outside of the United States' jurisdiction.
Nobody laughs. But then, nobody winces or flinches, either. Somehow, a remark that would have flattened us had a Souter spoken it is just a solid day at the office for Scalia. I have no idea where the tequila comment should register on the nation's macaca-meter. The more interesting question is about Scalia's deliberate carelessness with language, his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others. Indeed, he seems to think it's his obligation to be ever more reckless with his words, perhaps because he's about the only guy left who faces no consequences for his rhetorical body-slams.
If George Allen had uttered Scalia's "nobody thinks your client is abstaining from tequila" crack today, it would have been front-page news. The rest of us would have been forced to form some opinion as to whether it was an "aspersion," a stereotype, a gaffe, or just a celebration of worm-laden beverages. ... Scalia wants to be a part of the national conversation, but not on the terms the nation has agreed to. And each time he unleashes one of these remarks, I find myself wondering whether he's protecting his right to express himself, or just relishing his free pass.
More hilariously yet, some few argue solemnly on Volokh that this is indeed a terrifying deviance from social mores:
I don't see how context matters. Suppose the petitioner had been from Israel and Scalia had refered to Manishevitz? How about someone from West Virginia and moonshine?Law.com solemnly picks up this rather weighty banner and runs with it, too, quoting Hispanics who claim to be outraged:
Who cares whether the context is a legal discussion about potential violations of parole? If a S Ct justice is going to imply through questioning a generalization based on race or ethnicity, I'd be offended.
Someone please tell me there would be no offense if Scalia had been talking about a Jew drinking Manishevitz violating parole.
Carlos Ortiz, former president of the Hispanic National Bar Association, was not in the audience but reacted strongly when told of the comment. "Justice Scalia is supposed to be very smart, but anyone who is supposed to be so smart would not and should not say something that insensitive. It is a really terrible comment, and he should be called on it."Indeed? What an idiot this Ortiz is. Hot Air has some interesting comments. A lot of people really dislike Scalia; as this commenter on Volokh writes:
I say not offensive. But, it still doesn't make Scalia less of a dick.Give him points for consistency; people who call other people "dicks" shouldn't swoon over tequila in Mexico. I'm tired of the Scalia Scareshow, and I can't imagine that many Hispanics are truly offended by the tequila comment. Those that are really aren't fit to live in a democracy, and I'm starting to wonder how many legal types really are fitted for it either. Here's yet another Volokh comment:
Here's my take on the matter, in today's Underdog Blog:Words just fail me, but never fail them, it seems. Chief No-Nag is a naturalized citizen from Central American. The US would like to label him Hispanic - he refers to himself as American. He's certainly not ashamed of where he was born and raised (El Salvador & Costa Rica), and he certainly feels free to criticize some things about American culture. This would not be one of them.
October 5, 2006
Why did Justice Scalia say "Nobody thinks your client is really ... abstaining from tequila down in Mexico"?
Justice Scalia declined to comment on the matter to Tony Mauro of the Legal Times. Even if he wanted to comment, I do not know how an appellate judge, particularly a Supreme Court judge, could do anything but decline to comment in order to fully and faithfully decide a pending case.
Calos Ortiz, a former president of the Hispanic National Bar Association, has advocated for appointing a Hispanic justice and more Hispanic Supreme Court law clerks. As part of his reaction to learning of Justice Scalia's above comment -- perhaps out of context -- he said: "This is the kind of incident that makes it so clear that the Court needs more diversity." Legal Times (Oct. 4, 2006).
In the audience was Benita Jain, a lawyer involved in filing an amicus brief supporting the immigrant parties in this case. She pointed out that most immigrants who could experience the impact of this Supreme Court case are "lawful residents who have been here since they were young." Legal Times. In other words, a person's citizenship is but one aspect of who the person is. Regardless of Justice Scalia's motive with the tequila comment, it should not have been made, and does not assist progress away from unfair and harmful ethnic stereotyping.
No matter our general views towards a judge, positive or negative, their actions must be kept in the sunlight. They wield too much power to do otherwise. This helps foster more diplomacy by judges, and leaves the public ready to form its own views about judges' actions. Unfortunately, I imagine that many outrageous and unfair comments and actions by judges stay in the shadows, with the witnessing lawyers reluctant to reveal the comments and actions, whether out of concern about retribution, a feeling that the comment or action is no big deal, or otherwise. Jon Katz.
He does get offended and angry when salesman call here wanting to speak Spanish to him; he feels that's a slur, as if he wouldn't have the moxie and intelligence to learn to speak English, even as an adult. Here in the south there is some wariness about Catholics; he came home roaring with laughter one day when his new insurance agent asked him if he belonged to any church (some negotiate discounts with insurance agencies and doctors), and he answered Catholic, but pointed out that there wouldn't be a discount for that. She replied with a straight face, "No, if you're Catholic you have to pay more!" He laughed half the day about that one.
Look, if the culture of our country were really as daintily hypersensitive as these people want to make it, Chief No-Nag wouldn't want to live here. Such extreme sensitivities end up causing uneasiness and a lack of openness between groups; they are an instrument to create bigotry instead of an instrument to end it. Btw, bigotry does exist in South America. Most definitely, it does.
Chief No-Nag is very, very serious about the American Constitution, and he thinks this free speech rule is very important. We must have more than 50 books about US political history in the house; Chief No-Nag is always earnestly studying the phenomenon of the US, in order to understand how it was created and how it may be sustained. The above exercise is not the way.