SULLY ON SCALIA
Andrew Sullivan argues Antonin Scalia lacks the proper temperament to be a judge:
What troubles me about Antonin Scalia is not so much the substance of his views (although I share very few of them) but the angry, sarcastic, bitter tone of his judgments. David Broder had a similar take last week. Part of what it takes to be a judge, in my mind, is a certain indifference to passionate advocacy, a sense of moderation, and prudence. If someone cares as passionately as Scalia does about the moral issues in what he has called the “culture war,” and if he isn’t even interested in moderating these passions in his judicial rulings, then it strikes me that he is not acting as a justice should act: with dignity, care, distance, and respect for alternative arguments. It’s the tone that’s off. It can be amusing, bracing, shocking, interesting; but it certainly isn’t a judicial tone.
I disagree with Sully on this one, as regular readers might expect. I read Scalia’s tone as an indication of frustration with his colleagues’ willingness to flout the Constitution and judicial precedent to arrive at a political outcome they desire. Scalia often rules in ways that result in policy outcomes he dislikes but that nonetheless comport with his understanding of the law and the proper role of judges in it. To me, that’s the essence of judicial temperament.