Skip to main content

There's a Right Way and a Wrong Way to Talk About Justice Antonin Scalia

The right way: be as nice as you can, and save the politics for at least a day or so. The wrong way? Everything else.

It has always been my personal policy to do my best to refrain from speaking ill of the dead, even on a substantive basis, for at least a day or two following an untimely death, and if possible, to find something nice to say. In Justice Scalia's case, I recounted my lone meeting with him, at 2013's White House Correspondents' Dinner, where he was gracious, generous with his time, and a personally delightful. He was probably the nicest of the hundreds of people I met that night.

At the very least, though, you should avoid an unseemly rush into politics, like the one Senate Majority Leader Mitch McConnell couldn't wait five seconds for upon learning of Scalia's death. Those on the other side of the political aisle, meanwhile, tried to be as gracious as possible about the passing of a conservative justice whose record and legacy left little for which to applaud, and which were better left unsaid.

Some Democratic leaders found their own diplomatic ways of complimenting Scalia without really complimenting his work. President Obama mostly stuck with personal details, but called him "one of the most consequential judges and thinkers to serve on the Supreme Court," which sounds good until you realize that Bill Buckner was one of the most "consequential" first basemen in Red Sox history.

Similarly, Hillary Clinton said that Scalia was "a dedicated public servant who brought energy and passion to the bench," which could also partially describe Bill Buckner.

Then there was Bernie Sanders, who, in an interview on this week's Fox News Sunday, told Chris Wallace that he had "respect" for Scalia's service to his country:

WALLACE: You disagreed with Justice Scalia on a judicial basis, not a personal basis, on almost every issue. What do you think his legacy is, sir?

SANDERS: Well, clearly, he was a brilliant man. A very colorful man. Aa very outspoken man. And I happen to respect people who are willing to come under public scrutiny and serve their country. So you're right, Chris, he and I had very different points of view, but I respect people who are willing and prepared to serve their country.

There are many things to respect about Justice Scalia. As President Obama said, the man had a stellar intellect, and it would be impossible to deny his skill in an argument. The affection that those who knew him personally had for him was borne out in my brief meeting with him, and his professional accomplishments are literally impossible to surpass: he was a member of the Supreme Court.

But to respect his service to our country is to acknowledge that Justice Scalia ever did a service to his country, when his actual record as a Supreme Court justice is toxic to anyone who cares about the things that make this country great. Did Sanders respect the service Scalia did when he argued that black students might be better off going to a "slower-track school where they do well," a remark that even shocked Donald Trump?

Was it the great service Scalia did when he helped the court gut the Voting Rights Act, which he chalked up to "perpetuation of racial entitlement?" Was it his inconsistent dissent on the Defense of Marriage Act, in which he railed against overturning the will of the duly-elected legislature just days after overturning the Voting Rights Act that was passed by the duly-elected legislature?

There has also been a lot of ridiculous back-and-forth over whether President Obama should even bother nominating anyone while he's still black, and bitching about this politician or that having said something in the past about confirming or not confirming justices. Tamron Hall demonstrated the right way to deal with that bullshit earlier today when she shut down Rep. Steve King as he tried to muddy the issue:

King: You’ll find Chuck Schumer in his own words, and others also that contradict themselves, and you’re going to see, if people have been in that senate long enough, that they have been on the opposite side of this equation, there will be arguments that are made on both sides of this. But if I heard Chuck Grassley’s words right, he said judicial nominees, he didn’t say Supreme Court justices.

Hall: And others would say please see the words correctly in the constitution, it clearly states the role of the President, and that of the Senate.

Boom!. Even the black president(s).