Edward Whalen Quotes
The “gaffe” gives Scalia’s critics ample occasion to deride the error, and I won’t fault then for having fun doing so, as I won’t dispute that I and others would likely be doing the same for a blunder for a liberal justice.
In his boisterous dissent he read from the bench in the EPA v. EME Homer City case, Supreme Court Justice Antonin Scalia, made a mistake and in citing a previous opinion he had written, he made an error recalling what he had written previously. Critics of the justice not only castigated him but made fun of his seemingly foolish error that a law student should not make. Whalen’s quotation is important because it illustrated the highly partisan tone in American politics at that. Whalen, a partisan conservative explains how he would do the same thing if a liberal judge made a mistake. The error was corrected in the final published version of the opinion, and it did not affect the logic of the dissent or even the factual arguments for the dissent. Yet the quest for partisan advantage and trashing a political opponent was so in vogue that a minor mistake was treated as a major political scandal. The end of the 20th century and the beginning of the 21st were not the most partisan and nasty era of American politics but it was one of the worst.
Edward Whalen, President, Ethics & Public Policy Center, Deputy Assistant Attorney General (Republican), General Counsel to the U.S. Senate Committee on the Judiciary, Quoted in Robert Barnes, “Scalia v. Blogosphere: Gaffe sparks partisan outrage”, The Washington Post, May 4, 2014
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Chase a Supreme Court justice at the time was a very partisan Federalist. The Senate was controlled by the Democratic Republicans. Randolph, then a member of the House of Representatives, orchestrated the impeachment of Chase because of his extreme partisanship. The Senate in trying the case had to decide for the first time what “high crimes and misdemeanors” the actually means in terms of impeachment. A number of the Democratic Republicans joined the Federalists in taking the view that however undesirable the Supreme Court justice’s partisanship would be, that did not reach the threshold of a “high crime and misdemeanor.” Chase was acquitted. In this sense this impeachment trial was similar to that of President William Clinton almost 200 years later. The behavior was undesirable but did not amount to a high crime and misdemeanor, Clinton was also acquitted.
From time to time, the assessment of a prospective Supreme Court justice has depended on an attempt to move the court in a particular direction or to prevent that. This is as opposed to the issue of the competence of the nominee. In most cases, such nominees may not have been the best qualified but they have been extremely competent. In a few cases, such as that of Justice Clarence Thomas, the justice was mediocre and inexperienced at best, but his virtues were his race and his total ideological consistency. Most attorneys can predict his vote in advance. He has never asked a question in oral arguments. See {623452} .
See Abraham Lincoln for a similar view.
This document was a type of Magna Carta but far earlier.
Scalia had been a close friend of the Vice President. He had recently been taken on the Vice President’s plane and they went duck hunting.
Then Clarence Thomas replaced Thurgood Marshall on the Supreme Court, there appeared to be a majority of the court that would overturn Roe v. Wade and a woman’s right to an abortion. However it was an election year and the Chief Justice, a Republican, was concerned that if Roe was overturned the electorate might take it out on the Republicans, whose Solicitor Generals had fought to overturn Roe, at the polls. He therefore postponed the hearing of a Pennsylvania case, and then tried to postpone it again till after the election. Blackmun’s memo caused a majority of the court to vote to hear the case with no additional delay. Ironically, by a single vote, Roe was upheld.
Martin Edward Whelan III is an American lawyer, legal activist and political commentator. Whelan's legal career included clerking for Supreme Court Justice Antonin Scalia and serving as a deputy assistant attorney general during the George W. Bush administration. Since 2004, he has served as the president of the Ethics and Public Policy Center, a conservative think tank "dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy".
