Nino Scalia Reinvents The Wheel

From the man conservatives and Federalist Society adherents routinely praise as an eloquent and transformational legal genius, the gold standard for their idea of a Supreme Court Justice, comes this precious nugget courtesy of Ashby Jones at the WSJ Law Blog:

In response to a question from host Susan Swain about the “quality of counsel” who appear before the court, Scalia responds with this gem:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Holy jeebus. Jones might want to double check to make sure he didn’t take this quote from Clarence Thomas’ interview by mistake. Seriously, how many bottles of Chianti was Nino operating on when they hit him up for this interview?

First off, horrible attorneys and rubes don’t get to argument at the Supremes Nino, their cases are weeded out of the process on the way by bad lawyering and/or bad facts before reaching you, or the lawyers realize they are out of their league and take on co-counsel more experienced and better equipped to argue to the Big Bench. So, yeah, the talent you see, even the ones "from podunk" are probably very good relatively speaking. But it is most certainly not like that out here in the real world. Come on down to the state and local trial courts on my rounds Nino; you’ll be singing a far different tune. The legal profession is literally overflowing with crappy lawyers and functional morons. I wouldn’t trust a lot of them to drive a car, much less invent it.

I have always wondered why people think Scalia is such a brilliant transformational legal genius. Even most Democratic leaders treat him as such in spite of vehemently disagreeing with his beliefs and opinions. He really isn’t all that as far as I can discern; instead he strikes me as a rather pedestrian voice and legal mind in the history of Justices on the Supreme Court.

And if there is one thing in the world we have more of than lawyers, it is cars.

27 replies
  1. freepatriot says:

    so what ///

    we should all thank nino for occupying a supreme court spot that could have been wasted on some of the best minds in the country

    that’s repuglitarded logic at it’s finest

  2. MadDog says:

    Taking the opportunity to riff on your words bmaz:

    …I have always wondered why people think Scalia Senator Arlen “Scrapple” Specter is such a brilliant transformational legal genius. Even most Democratic leaders treat him as such even though they vehemently disagree with his beliefs and opinions…

    Because Scrapple can’t see the irony in his own words (5 page PDF):

    Dear Congressman Sestak:

    …You cannot continue to shirk the main duty of your office…

    …It’s okay to want to campaign full-time for…the U.S. Senate but it’s wrong to continue to do it on the taxpayer’s dime — they deserve better, they deserve a full-time Congressman.

    Serve or quit — it’s that simple.


    Arlen Specter

    Only a genius of Scrapple’s stature could tell someone else not to campaign “on the taxpayer’s dime” while campaigning himself “on the taxpayer’s dime”.

    I suspect Scrapple was sharing that bottle of Ripple with Nino.

    • freepatriot says:

      whom the gods would destroy, they first make insane

      or something like that

      it was a real cheezy book

  3. Ishmael says:

    The US Supreme Court could benefit enormously by drawing judges from a broader spectrum of the legal profession – an eminent trial lawyer for example, a real legal academic, a governor/senator with legal brilliance who understands the political process. Presidents used to make appointments like that, and the Senate used to confirm them. The current roster is dominated by stealth appeal court judges with limited (if any) trial experience or creativity in the advancement of the law.

    • bmaz says:

      Very much agreed. The Supremes would greatly benefit from having a Roy Black or Gerry Spence or the like on the bench. That is one thing I actually do like about Sotomayor, she has a diverse career with real courtroom experience as a prosecutor, private attorney and on the bench in lower trial courts.

      • Ishmael says:

        …and agreed as well on the alleged “brilliance” of Scalia. His “originalism” is almost always in the service of his particular prejudices, and usually at the expense of justice. In Bush v Gore, he constantly argued with Gore’s team that the Constitution does not explicitly guarantee the right to vote for President to anyone but the Electoral College. Just a while ago, he said in dissent of a death penalty review:

        “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.”

        I don’t know how much of this “brilliance” I could take from a judge at the expense of a sense of fundamental justice.

  4. Palli says:

    Well, he’s got to support all those religious-type law school graduates. (What’s that one Tom Monaghan is driving into the dirt?) Plus pretend the Yoos of the last administration were supposed to have risen to that level through merit.

  5. earlofhuntingdon says:

    The only guy who can make the line, “I refuse to join a club that would have me as a member,” funny was Groucho Marx. Nino thinks its cool to trash himself and all other lawyers by lamenting, “couldn’t they [we, I] do something creative or constructive?”

    It’s an old Republican meme, illustrated by Andrew Card when he was chief of staff during Shrub’s first term. Persuaded to speak at a lunch for the top interns in DC that year – some of tomorrow’s top leaders – he told them the same thing: “Fuggedaboutit government service,” said the then public employee Andy Card. Do something creative that would contribute to public life: start or run a business. The topic Card was meant to speak about was the value of public service careers.

    In one sense, Card did value public service as a waste, a lost opportunity. On another, he didn’t mean it at all: he was then, after Cheney, Rove and Bush, the fourth most important figure in the executive branch. Who he wanted to discourage from careers in public service were those who wanted to be effective as public servants. He wanted to encourage them to do something else and to leave running government to those like Card (GM’s former top lobbyist) and other lobbyists and industry moles. As examples, I would point to Scalia’s son’s work at Labor – he trashed ergonomic standards for a generation – and to Darth Cheney’s daughter and son-in-law at State and the OMB, respectively.

    Scalia may be expressing a Clarence Thomas level of self-loathing. Or he may be saying the same thing as Card: “Liberals, don’t work for government or public causes. We don’t want the latter supported at all, and we want all the government jobs (and Ivy League law school seats) to go to Federalist Society members.”

    As for Nino being a pedestrian pedantic, a Bill Safire in robes, I’ll leave that to bmaz’s more astute judgment.

    • knowbuddhau says:

      Nice allusion to the poisoned-pen master. and I think apt as well. Did you see David Bromwich’s Safire obituary?

      “There were no thrills while he reigned, but neither were there any headaches. He had no ideas, and he was not a nuisance.” What Mencken said of Coolidge can be reversed in the case of Safire. There were plenty of thrills, and after the thrills, the field was littered with casualties. And he had tons of ideas. He was keen to share them as soon as he thought them up. The career that took him from public relations to propaganda to column-writing was a single seamless progression. He treated these different lines of work as the same work; and under his hand, they were. He was interested in words, yet he has left behind no sentence or sentiment that people will quote in the future merely because it is true.

      He never met a war he did not like. He did all that he could to drum up several wars beyond the psychological means of his country and the world; and his disappointment could turn to spite when a war that he wanted failed to materialize. Jimmy Carter’s refusal to bomb Iran in the years 1979-1980 was the greatest defeat of Safire’s life. His record on Vietnam (both during and after), on El Salvador and Nicaragua, and on Iraq would be worth combing the archives of the New York Times to recover, simply as an exhibition of savage consistency. Safire was not the originator of the psychology of the self-righteous onslaught, “ten eyes for an eye” — human nature found it long ago — but he was the American of his generation who almost made it respectable. Did a terrorist set off a bomb in a café and five Americans die? Send in the Air Force and demolish a foreign capital somehow connected with that terrorist. The flash of the violent gesture, for Safire, was more important than the justice of the action.

      • earlofhuntingdon says:

        I hadn’t read it, thanks. The “ten eyes for an eye” is instructive.

        The Torah’s command to take “an eye for an eye” was meant to ameliorate the slaughter of war and vendetta among Middle Eastern village and town populations. It meant take only an eye for an eye, not a life or a family or a clan.

        Safire’s orgy of pro-war words from Vietnam to Iraq and Iran, his Cheneyite preference for repaying violence with an order of magnitude or more violence, his preference for war as the best and only response to grievance, violated that biblical principle, as it does the post-World War Two appreciation that it doesn’t solve problems, it makes them greater.

  6. SparklestheIguana says:

    I’ve heard Scalia say the same thing before. He needs to stop recycling these nuggets and come up with some new material. It’s getting stale.

  7. Mason says:

    I’ve read lots of Scalia’s opinions. He lacks vision, common sense, his writing and reasoning skills are poor, and he’s a political hack. I can’t understand why anyone is impressed with him.

  8. cinnamonape says:

    Scalia also shows a lack of respect for the value of the law in a Constitutional Democracy. These decisions have impact that is wider than he seems to think. Has he drifted into the idea that his decisions only affect the immediate litigants, or something? Is that how he justifies his piss-poor rulings? It’s almost a step away from saying “I rule on personalities, if I don’t like the defendent they’ll lose”.

    And no one “invents the automobile” nowadays…that’s as clichéd as “find a cure for cancer”. At best those “brilliant jurists” might be on a team that helps design a car, or a scientist that’s on a team that finds a possible treatment that deals with one form of cancer. But these are no more, or less, valuable than people who toil to defend the unrepresented in court.

    • MaryCh says:

      No, they require a minimum of an iron butt, big ego, and an unnatural fondness for nitpicking. (But as most lawyers will tell you, passing the bar exam and lawyering aren’t that closely related.)

      Justice Scalia’s reputation is built in part on his willingness to be nastier other justices – next to his stuff Justice Ginsburg’s most acid comment is sweet lemonade.

      • freepatriot says:

        passing a bar examine can’t be that hard

        look at all of the “dirt stupid” repuglitards in the bush administration who managed to pass the bar

        I seen a lot of those people testify under oath, and some of em couldn’t think their way out of a paper bag

        some paper bags are trickier than others …

  9. TarheelDem says:

    The Podunk reference was the tell. Doesn’t Scalia know there is no such thing as a one-lawyer town?

  10. scribe says:

    Talking about functional morons in lawyer clothes, this is the lead sentence from a brief I received yesterday, in which the lawyer is seeking summary judgment:

    The defendant is entitled to summary judgment for summary judgment.

    Remember, when you write a brief, get in your best shot first because it sets the tone for how the judge will read the rest of your papers.

  11. Mary says:

    I remember this was a hot topic when I was young, maybe in the late 70s or early 80s. My dad was the president of the local bar and I guess he got a bit peeved at the hand wringing that too many good minds were going into law and he wrote an op piece. I wish I’d thought to have kept it, but the essence of it was that when someone finds themselves faced with a significant legal problem, you never hear them ask for a really mediocre, kinda average, lawyer.

  12. Gitcheegumee says:

    Well,since he thinks lawyers are wasting their minds,what’s his excuse for being one? No creativity?

  13. Hmmm says:

    The reason why he wants dumber lawyers in front of him is so he can tell them No more often. Less pesky changiness.

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