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Giving 'Our' President His Due -- Seeing Others Without Partisan Glint -- The Homily of Fr. Paul Scalia

The Huffington Post The Huffington Post 22/02/2016 Douglas Kmiec

Whether you accepted the late Justice Scalia's method of constitutional interpretation as delivering objective outcomes based on neutral principles or conservative outcomes hidden within an originalist office history, there is little question but that his deliberative life affirmed the importance to our republic of a rule of law. It was an affirmation much needed given the increasingly repetitive shrillness of partisan politics which suffuses the presidential primaries.
Justice Scalia's funeral mass was fittingly offered by the Justice's son, Father Paul Scalia.
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Father Paul's inherited wit and physical resemblance to Dad made every father in America listening to him very proud, and hopeful, to be remembered as nicely by their own children.
Amidst the thousands bidding the Justice farewell was a highly regarded law professor Edward McGlynn Gaffney.
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For many years, I enjoyed Professor Gaffney's company on the Notre Dame law faculty. Like myself, Professor Gaffney had occasion to know the Justice from service in the Department of Justice and other academic occasions.
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In filing a report of the mournful day, Professor Gaffney reflected how the late Justice always invited and saw as normal the open debate of first principles. Professor Gaffney surmises that Justice Scalia would think the GOP demand that the President leave his seat unfilled and the work of the Court undone as "shockingly abnormal." But then, there has been an undercurrent of short-changing Barrack Obama from the beginning of his presidency, almost as if, Gaffney reflects, some portion of America never accepted him as "our" president.
The importance of language. The adjectives "our" and "your" are separated by a single letter, but sometimes their casual usage aids and abets a separation that reinforces stereotype rather than opens paths of understanding and common ground. In this, not even Justice Scalia and Professor Gaffney, like the rest of us, are always immune.
Professor Gaffney recounts a ride to the Scalia home across the Key Bridge to Virginia that was bottled up because someone had leapt over the White House fence. The story illustrates Justice Scalia's keen wit, but unintentionally it also reveals a partisan teasing that is harmless in the story, but troubling if we permit it to become embedded in serious thought. As Professor Gaffney succinctly puts it, some who insist on blocking a replacement for Justice Scalia treat President Obama as if he were three-fifth's president, in the same manner as slaves were labeled three-fifth's persons.

But I am getting ahead of a good story; here the story of Professor Gaffney's ride with Justice Scalia as Professor Gaffney recounts it:
Just before we turned north near the White House he blamed Bill Clinton for the [re-routing] of traffic: "Your president caused this mess, you know."
Gaffney replied: "Make that our president, Nino. The constitutional convention rejected the proposed committee of five Platonic guardians. Madison wrote 'there shall be one President of the United States.'" There was silence, except for occasional horns. The Professor finally broke the silence inside the car: "And by the way, I did not vote for William Jefferson Clinton."
"Don't give me that baloney" [actually he used another word]. "I know you're a deeply wooly liberal."
"If what you mean by 'liberal' is a person who wants to live within the restraints of the Constitution and who believes that both sides of the penny - Liberty and E pluribus Unum - must be preserved carefully in our republic, and then count me in. But you probably believe the same Credo. What's that got to do with respecting our president, whether we voted for him or not?"

"Because you liberals generally flock together. Baaa, Baaa. That's why I am surprised that an obvious liberal like you didn't vote for Clinton. Do you mind telling me why you didn't?"
"For the same reason you didn't. In our country our constitution allows us to participate in a general election every four years to choose electors who choose the president."
"Oh for God's sake, you know what I mean."
"Yep, and now you know what I mean. By the way what do you think about the Electoral College? Time to get rid of it?"
"Not my problem. A classic instance of a political matter textually committed to another branch. If the Electoral College can't do its job, then the House has to decide the question, one vote for each state."
"I know my question is a political one, not a judicial one. But the big difficulty is with the political question doctrine of your Court...."
Smiling, Justice Scalia turned the table on the Professor: "Would you please make that our Court"?
Gaffney took the correction but suggested that judges on the federal courts are still apt to take up political questions, commenting that the Court is so unpredictable that I doubt the justices could be relied on to refuse jurisdiction if a hot case tempted you to put party loyalty over the right result in a presidential election. "It happened in 1876," observed Professor Gaffney, "and it's bound to happen again. Sooner or later the popular vote will go one way and the Electoral College the other way. And I bet that someone will offer Our Court oddball legal theories that the justices will not have the courage to resist."
The Justice was not prepared to yield the point. Responded Scalia: "You have no basis for that statement. The 1876 election was obviously wrong because it violated separation of powers. That so-called electoral commission is nowhere in the Constitution. But no one brought that case to our Court. Even the election of 1824 was not a hard case. It was decided exactly as the text says it should be decided. Jackson won more votes than the others, but it was not a popular majority, only a plurality. So it went to the House, where the people's representatives elected Quincy Adams president. That's the will of the people, as the Constitution lays it out."
Gaffney persisted. "But the very fact that popular vote failed to prevail at least twice shows that it can happen again. Shouldn't we at least have a national debate about whether we keep this system?"

"Oh, be my guest. Stir up all the debate you like, and if you amend the constitution to your liking, I will certainly abide by the text of that amendment."
The Justice had the better of it that night, but as Professor Gaffney notes, his comment about the Court being tempted unfolded in Bush v. Gore, where the Court 7-2 or 5-4 depending upon how one frames the question stopped the Florida recount, and to some, short-circuited democracy.
Writes Professor Gaffney: "Nino didn't have an opportunity to tell me to "get over it," as he did repeatedly whenever he was asked if he had departed from originalism in that case."
Professor Gaffney's story is rich with insight about the not so subtle risk that all Americans, judges and professors among them, may too unthinkingly allow politics to substitute for law. Some professors - not the eminent Professor Gaffney -- cynically teach there is no difference. Even one of the greatest jurists of our time may have in an unguarded moment in traffic been too quick or too glib finding the "wooliness" of liberal views.
One thing for certain, Justice Scalia for all his confident bravado did not proclaim himself a plaster saint or, as Scalia would say, more than a humble judge.
Father Paul took advantage of the more prideful nature of lawyers when he began his funeral homily with a clever bit of misdirection his father would have savored. Said Father Paul: "We are gathered here because of one man. A man known personally to many of us, known only by reputation to even more. A man loved by many, scorned by others. A man known for great controversy, and for great compassion. That man, of course," said Father Paul just barely hiding the joy of the misdirection of the often vainglorious men and women assembled before him, "is Jesus of Nazareth."
This time of year as Easter approaches we are reminded of the Son who was able to surrender his life asking forgiveness for his enemies whilst he hung on a cross. Father Paul Scalia in reminding us of our own personal call to love our enemies gave those on either side of the rancorous debate about filling his father's vacancy and the purveyors of insult in presidential primary a much needed reminder of the quality of mercy; a quality which very likely begins with his Dad's terse instruction for all of us to just "get over it."

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