a citizen’s journal by Thomas Nephew

Ask not for whom the torturer comes

Posted by Thomas Nephew on May 2nd, 2008

What Jim Henley said, about Supreme Court Justice Antonin Scalia’s sophistry about torture not being prohibited under the Eighth Amendment because it isn’t “punishment” but interrogation:

…one of my biggest arguments was that the corruption of war and torture would seep back across the border and contaminate republican institutions and principles here at home. Scalia makes clear that that is actually the idea. Conservatism is just the interest of the stronger.

Note also thoreau’s point in comments that Scalia’s answer completely ignores the Fifth Amendment’s prohibition against torture, which is of course the working definition of self-incrimination and attempts to bring that about. As thoreau shows in an earlier post, that prohibition was one of the intended effects of the Fifth Amendment.

UPDATE, 5/2: embedded 60 Minutes clip added.

8 Responses to “Ask not for whom the torturer comes”

  1. mick Says:

    Scalia’s vaunted brilliance has always been a scam. I tore him apart a few years ago when I discovered that his supposed “razor-sharp mind” was in fact nothing but a propensity for inventing legal excuses – most of which made no sense – for his conservative ideology. In the past he has written decisions that ignored the Fourth Amendment against search and seizure, as well as massive (tho unacknowledged) violations of settled precedents that go back to Lincoln.
    The man is slime. He doesn’t belong on the bench, let alone the SCOTUS and never did.

  2. Thomas Nephew Says:

    I agree — he’s a hack; I’ve written about him myself a couple of times, re a church/state case he lost 7-2, and re failing to recuse himself from a case involving Cheney, even though he went on hunting trips with him. I later clarified that I wasn’t at all against him continuing to go on hunting trips with Cheney.
    UPDATE, 5/3: Looks like Mick’s post was about the recusal issue, too.
    UPDATE 2, 5/3: And of course there’s Bush v. Gore; the post is by Scott Lemieux at “Lawyers, Guns and Money” re the “get over it” remark. But “torture isn’t cruel&unusual punishment, never mind self-incrimination” is a low point in a career defined by them.

  3. the talking dog Says:

    Cough cough “OUTCOME ORIENTED” cough cough.
    And yet, as troubling in that department as are Scalia and (his occasional ideological siamese twin) Thomas, they at least, are less sinister than their brethren Roberts and Alito, who will also torture existing law and precedent to get the result that they want. Only the latter two will add an Orwellian element, and insist that they aren’t overturning the precedent at all, but merely “distinguishing it for this one case”… (and all the other cases.)
    At least Scalia is out in the open about his wingnuttery and intellectual dishonesty… I realize its hard to imagine, but we are one more GW Bush appointment (or perhaps, John McCain appointment) from Scalia and Thomas being in the Court’s center. If that doesn’t make one swallow any misgivings for voting for the Democratic nominee regardless of who it is, I don’t know what will.

  4. Thomas Nephew Says:

    Re “outcome oriented,” a tiny worry at the back of my mind is Obama’s U. of Chicago connection and Judge Richard Posner. Posner has basically argued that picking the desired result and finding legal reasoning to get you there is a good thing. See also here, about how Posner recasts ‘liberal’ opposition to the Korematsu ruling (OKing Japanese internment in WW2) as mere anti-military sentiment, and not for its alleged/implied pragmatism.
    I think a Justice Posner would become the empty “center” of the Supreme Court. That hypothetical isn’t a reason to vote for McCain, of course; this is just a comment.

  5. mick Says:

    At least Scalia is out in the open about his wingnuttery and intellectual dishonesty….
    No, he isn’t. He’s been outed, which is quite a different thing. He still insists he’s “trying to bring balance back to the court” and similar right-wing excuses for pursuing a blind ideological agenda.
    You’re right about Roberts and Alito but only because they’re still getting away with the folderol nobody buys from Fat Tony any more.

  6. karen marie Says:

    you know your country is in trouble when a member of the highest court in the land profoundly lacks a basic understanding of the foundational document he swore to uphold.

  7. mick Says:

    Can I get an Amen for karen marie?

  8. Thomas Nephew Says:


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