Full Title: Kavanaugh, Scalia, Taney: Original Sin in the Jurisprudence of our United States as Manifest in (1) Nominee Brett Michael Kavanaugh, (2) Associate Justice Antonin Gregory Scalia, and (3) Chief Justice Roger Brooke Taney
"Those who speak can't know;
Those who know can't speak"
A Chinese proverb
According to Friedrich Nietzsche, "Insanity in individuals is rare; but in groups, parties, nations and epochs it is the rule."
There are, of course, perplexities in human behavior that most of us understand quite imperfectly and, all too often, we humans apparently retain only the slitest [sic] glimmer about what is going on in our own personal behavior and, especially, within the groups to which we either proclaim or exhibit our greatest loyalties. I begin by noting that the Book of Genesis, the first book of both the Hebrew and Christian Bibles, describes the moral plight of two human prototypes, an "Adam" and an "Eve". When the couple is discovered in doing something that each recognizes as 'wrong', each of them blames a creature other than themselves. The man blames the woman; The woman blames the snake (aka, perhaps, the 'Devil'). Of course, one need not be a "person of religious faith" to believe in self-deception. For example, atheists Friedrich Nietzsche and Sigmund Freud have presented what are for me trenchant — if incomplete — theories about and observations of the ubiquitous propensity of human beings to lie to ourselves.
While I personally have been influenced by the work of Friedrich Nietzsche, I believe that the prophetic words of Jesus and other Hebrew prophets (Jeremiah, Amos, Isaiah…) are even more pertinent in attempting to understand — and, in understanding, to oppose — the political ills and evils of what is sometimes naively called 'Constitutionally Sound American Justice'. And, in this article when I single out these three justices as paragons of judicial hypocrisy I do so because (1) I believe the old maxim that we should expect more from those who have more than those who have less and (2) I believe that the common and often repeated assertions of these three judges to the effect that they, in their decisions, had striven (Taney, Scalia) or have striven (Kavanaugh) only to 'only' interpreted the law is a terrible and hypocritical moral and judicial falsehood. In their words, written or spoken, Justices Taney and Scalia emphatically asserted that they did not 'make' law. Similarly, today Kavanaugh often cites Scalia as he promulgates this old shibboleth of those who provide legal support for the structural injustices of our society. And, it is precisely those who claim to be personally disinterested who are most blind to their own biases.
Shakespeare's Mark Anthony says of Brutus and his co-conspirators in Julius Caesar, "For Brutus is an honourable man;
So are they all, all honourable men--". And, it is quite true that all judges — like all humans — have worthy inclinations and have performed deeds of decency. And, furthermore, it is true that many judges — but not all — may lead decent 'private' lives. When Roger Taney was a young man he freed 11 of his slaves. Yet, in Dred Scott, Roger B. Taney, wrote, approvingly, that the Constitution and the history of every European nation assumed that:
[Enslaved Africans and their descendants had] "been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect."
Probably, I would assert, the most poisonous words every penned in a U.S. Supreme Court opinion.
Antonin Scalia — who could make his opponents and even his enemies laugh — defended the right of protestors to burn the flag and defended the right of those accused of sexual depravity to face their accusers. But, even tho he stated many times, that he should not inject his personal predilections into his opinions, he wrote opinions which helped paved the way for the infamous Citizens United (2010) decision which created new rights of "free speech" for corporations. This legal approach has permitted private corporations to diminish, stifle and, at time, drown out the voices of those individuals and groups who have not participated in the plutocratic plundering of the poor, the weak, and the dispossessed. And this plunder now corrupts our country deep into the inner recesses of our individual and collective souls and hearts. Scalia's theory of original intent was particularly hypocritical for a man who was in so many ways both knowledgable and learned on linguistic matters. All words evolve — words in religious and judicial canons evolve more slowly than most words— but all words evolve. They evolve simply because words are used by sentient beings with all manner of physical, social, and spiritual interests — and we humans are always finding out that there are inconsistent implications in what we have learned and, accordingly, we must sometimes take a new look at this or that minor or major matter. Pretending that by following his theory of original intent would create a 'safe' place to avoid being (improperly) overly partisan resulted, quite naturally, in such terribly partisan decisions such as Bush v. Gore.
Supreme Court Nominee, Brett Michael Kavanaugh, has a number of personal and personable qualities of note. I am, for example, quite impressed by his own efforts to increase minority representation in judicial internships. But I find it deeply troubling that he talks so much about his own 'virtuous' efforts when asked by Senators what his views are on important and difficult issues which face our country — issues which he has discussed at length in more approving private and public venues. In the Christian Bible one Jesus of Nazareth says "Why call me good?" It has been my experience that whether you or me or 'she' or 'he' spend large amounts of time protesting our virtues — something important and, almost always, incriminating has not been said. Mr. Kavanaugh used prolix theory to try to force a young woman in a Texas holding prison to have an unwanted pregnancy against the clear guidelines of Supreme Court precedents he claims to honor. More importantly, he appears to be holding tight to a theory of presidential power which might allow him to cast the deciding vote in keeping a president in office who wittingly became president with the help of a foreign power. And, hiding in his testimony, are clear indications that he colluded with other members of the Bush presidency's legal team in formulating a justification for torture at Guantanamo — and then may well have committed perjury at his 2006 confirmation hearing for Federal Circuit Judge.
Judge Kavanaugh has remarked that his decision on any future decisions about abortion will be guided by the President Trump's mandate to implement his campaign pledge to appoint judges that will overturn Roe v. Wade. The assertion that Trump's election is a justification for supporting a possible or actual immoral action is a dangerous gambit. Similar statements by Speaker Paul Ryan and my own Senator Marco Rubio in other contexts justifying support for unwise policies or laws — or, silently standing by — are already working their cruelty into our lives. At this very moment young children are held in cages near the U.S. border and elsewhere— in contempt of U.S. law, international law, and God's will. If someone pays you or orders you to drive a load of children over a cliff and you then take the children with you — you have committed a crime against God and Man. Taking children to cages or supporting Presidents, Attorney Generals, and Judges who permit such caging is also a crime. We can all make our choices and our — and, I for one, believe in a merciful God. But whether you — my reader — believe as I do or believe I am a fool (or somewhere 'in between'), the longer we nourish the darker angels in our nation, the closer we will feel the awfull Wrath of God against which none of us can stand. No, I do not believe any of us will go to a literal hell — but when we as a nation ride proudly into unholy battles, we dive into a desolation ("Purgatory") that will wither away the pride of any actual or would be dictator and his supporters. And it will bring permanent dishonor to any 'Religious' person who wants to have a prominent 'Seat at the Table' in sharing the profits of unearned wealth and power so pervasive within our current United States of America.
Lon Clay Hill, Jr. — 6 September 2018
