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Impeach Scalia? Bad Move

I received a few e-mails yesterday from civil libertarian colleagues grumbling about the interview Antonin Scalia gave to BBC radio yesterday in which the Supreme court justice seemed to advocate mild forms of torture in a “ticking time bomb” scenario. Reuters has a good wrap-up here. Some have gone as far as to call for the associate justice’s impeachment for discussing in the news media matters either before the court or likely to arise in the near future.

Scalia’s conversation with the BBC seems to me, frankly, a reasonable, or at least arguably acceptable interview for a SCOTUS justice. He uses the term “so-called torture.” Some have taken umbrage, including me. But it’s technically true that some call, for example, waterboarding torture, and so, yes, it’s “so-called” by some. His views might be extreme, but the great American conversation surely has room for extreme constitutional views. He makes a distinction, for example, between pain inflicted as punishment, and pain inflicted coercively in order to get allegedly life-saving information out of a captive. It’s not a view most of us would like to see associated with American constitutional values, but it’s not beyond being laid on the table.

There is considerable controversy, and disagreement, over the extent to which a SCOTUS justice should lay out for public consumption his or her views on the great questions of the day, except in a formal, published court opinion. But, on the other hand, we want our public officials, including out judges, to be more transparent – hence, for example, the quest (thus far rejected by the justices) for television cameras in the Supreme Court argument chamber. On balance, I’m in favor of our getting to know our justices better.

I fear we may be dealing with a knee-jerk situation here. Many civil libertarians loathe Scalia because of his conservative stances on abortion and gay rights, but their animosity is somewhat misguided. As Scott Turow pointed in his thought-provoking New York Times Magazine piece “Scalia the Civil Libertarian?":

“In Kyllo v. U.S (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment’s prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court’s four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.”

In truth, what irks me about interview is not Scalia’s statements on torture, but rather the continued discussion of the “ticking time bomb” fallacy. This is an utterly unrealistic (has it ever happened?) theoretical scenario that makes it sound like the use of torture is really justified. In fact, as I suggested a few years ago in a Boston Phoenix column in which I take on Professor Alan Dershowitz’ similar argument, it’s a bogus example with a much more sensible solution than the institutionalization of judicially-authorized “torture warrants.” So my problem with Scalia’s mouthing off on torture is not his giving the public a better idea of his views, but my difficulty in getting him to debate me, because he’s simply wrong.

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