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The second most notablie thing about the recent 9th Circuit decision on Prop 8 was the hilariously overwrought dissent, written by one Justice O'Scannlain. Referring to the President's call for "respectful conversation", he launches into this tirade:Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans...we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia....Even worse, we have overruled the will of seven million California Proposition 8 voters1 based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.He gives away the game with that "definition of marriage that has existed for millennia" schtick. (SPOILER ALERT: not so much.) When you see a judge recycling wingnut talking points, you pretty much know all you need to know.
Now, O'Scannlain is someone I wrote about 6 years ago. It was a case in which the 9th Circuit ruled that schools could ban homophobic t-shirts, and of course he wrote the dissenting opinion ("School administrators are now free to give one side of debatable public questions a free pass while muzzling voices raised in opposition", says O'Scannlain, speaking up for the right of kids to say certain classes of human beings shouldn't exist).
Back then I looked up his record, and found that he really was as wingnutty as the tone of his dissent suggested. From that post, 6 years ago:
O'Scannlain is hardly the First Amendment absolutist he sounds like in his dissenting opinion. In the past, he has argued against free speech rights for performance artists and government whistleblowers, and in favor of free speech rights for potentially violent anti-abortion fanatics and landlords who discriminate on the basis of religion.Since that time, he has also ruled that repeatedly tasering a pregnant woman isn't excessive force.
In other words, he's an activist judge who pretty much rules as an ideological conservative, and principle be damned. Just the sort of disgraceful behavior that, if he keeps it up, will probably get him appointed to SCOTUS.
O'Scannlain is 75 years old, so of course he's far too old to be considered for the Supreme Court. If you want to know what kind of judge President Romney would appoint, though, I'd say he's a pretty good model.
3 comments:
Tom,
It's too bad Roland Freisler's been dead lo these many years.
If Romney wins, and has a R Senate, I think the first SC nominee will be Robert Bork - just as a "FECK YOU! Suck On ThiS!!!" to the left.
And when he dies, and when other SC Justices do, a series of graduates from Regent University Law School will be sworn in to replace them, starting with Monica Goodling.
Throw Alberto Gonzales in that mix, too.
And John Yoo, too.
At 75 he's too damned old to be on the bench. Indeed, that much if not most of our ruling class are on average in their seventies could be, oh, I don't know, maybe an indication of the problem?
Not sayin' we of our mid to late fifties would do any better. Just sayin' that maybe a bit more equitable representation might be in order. That our ruling class is all in their seventies should be an explanation why they're all still living in the nineteenth century.
Victor, I think Bork would be a safe bet for an SCt nom under Mitty, except he's too old now - 85. But you can damn sure bet he'd have major input on any noms Mitty did make, & with a large enough R Senate majority, Yoo and even Gonzales might well be prospects. Down here, the 5th Circuit is chock-full of possibilities too - undistinguished legal corporate yespersons young enough to pollute the SCt for decades. And hell, they don't have to be Regent Law grads to be fascists - Yoo's teaching at Berkeley, for chrissakes, and Bork's a U Chi law grad, for example.
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