The Right Coast
May 02, 2004
By Tom Smith
Professor Rappaport, as usual, is too charitable. The Times piece on Scalia was an attempt to suggest he was doing something improper in giving so many speeches, and managed to find a law professor, Stephen Gillers, to say so. Gillers compares Scalia to Fortas and Douglas as generators of bad press for the Court. Thus the perfect self-fulfilling prophecy is fulfilled: The press gives Scalia bad press for giving speeches, then some law professor (who no doubt disagrees with Scalia's legal philosophy) opines that getting bad press is damaging for Court. What a joke.
The Times is letting Scalia know that they are watching, no doubt hoping to inhibit him from speaking his mind. Given that his speeches, or at least those I have heard, and I've heard a few over the years, don't say anything he doesn't say in his opinions, it's hard to see what could possibly be improper about them. He could hardly have been clearer in his opinions that he hates the non-interpretivist lines the Court takes when it feels like it. How does saying that in a speech as well change anything? Gillers accuses Scalia of calling undue attention to himself. He's half right. Scalia does call attention to himself, but I doubt it's undue. How paradoxical. An ethics expert who attacks the ethics of someone he happens to disagree with (I am assuming). That may not be unethical, but it creates the appearence of impropriety in a way that suggests law professors will say anything to promote their (usually liberal) views and get their name in the paper. Gillers is attracting too much attention to himself, at least for my tastes.
Lawrence Lessig, former Scalia clerk, distances himself from his past benefactor. Back when he was a Scalia clerk, the Justice from principled, Lessig implies. Now, he seems to have lost his way. As the church lady on SNL used to say, "How conveeeeeeenient!" I guess Scalia needed Lessig to keep him in line. Or perhaps its just that Lessig doesn't need Scalia's support anymore, or not as much as he needs to fit into the liberal ecosystem in Palo Alto. O, how sharper than a serpent's tooth it is. Whatever the explanation, I doubt it has anything to do with Scalia changing his stripes. The Justice must be very alarmed that former clerks at liberal law schools feel the need to distance themselves. I hope Scalia is tough enough to take it