Funeral arrangements have not even been settled for Supreme Court Justice Antonin Scalia yet and the flags are still flying at half mast. The Scalia family hasn’t had time to come to grips with the sudden and unexpected loss. One might think that during such a tumultuous period of shock and grief that those in prominent, public positions might refrain from breaking out the slings and arrows for a man who dedicated his life, on an off, for more than four decades to the service of his nation, no matter how much they may have disagreed with his opinions. One would be incorrect in such an assumption.
At Foreign Policy Magazine, the cause of Scalia’s death hadn’t even been confirmed before Rosa Brooks set to work writing an opinion piece about the celebrations which would be taking place in legal circles outside the United States, with victory laps being run to mark the great man’s demise. The introduction alone is enough to define poor taste. (For non-subscribers, a reprint is available at Yahoo News.)
Prepare yourself for pious proclamations of sorrow. Justice Antonin Scalia, stalwart conservative voice on the U.S. Supreme Court since 1986, is dead! Flags will be at half-mast, and for a few days, at least, everyone will pretend to consider Scalia’s death a terrible loss to the Court, the country, and the global legal and judicial communities.
The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.
There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.
For those not familiar, you might see the title of Foreign Policy Magazine and think, some foreigner is criticizing Scalia? What else is new? But that’s not the case at all. Brooks is a New York born, Yale Law educated liberal who has written for numerous outlets. Beyond that, she’s done more than observe and comment on the government… she was part of it. As a member of the Obama administration, from early 2009 until July of 2011, she was Counselor to Michele Flournoy, Under Secretary of Defense for Policy at the Department of Defense. Then, in May of 2010, she was assigned a new position as Special Coordinator for Rule of Law and Humanitarian Policy in the Pentagon.
So what does this trusted stalwart of Barack Obama’s White House feel is an appropriate response to the passing of a member of the nation’s highest court? She chooses to deride him for not paying sufficient tribute to the laws of other nations, preferring instead to stick with the boring old United States Constitution. In fact, she’s not at all shy about describing Scalia as a “know nothing” who damaged our international credibility.
Scalia’s resolute refusal to consider foreign or international law relevant to U.S. constitutional questions did not endear him — or the U.S. Supreme Court, on which he was so influential — to legal communities outside the United States. To non-Americans as to Justice Kennedy, Scalia’s contempt for foreign and international law often seemed to have a “know-nothing quality,” and the rarity with which the Court engaged seriously with non-U.S. legal precedents took a toll on its international prestige.
She goes on from there to mock Scalia for referencing fictional character Jack Bauer when discussing the use of torture on terrorists in the interest of staving off a catastrophe. But in closing out this nasty little attack, surely she could find something positive to say about the man, right? Sadly… no.
Goodbye, Justice Scalia. The Supreme Court will be a quieter, more cosmopolitan place place without you. But Jack Bauer’s sure going to miss you.
This is apparently what passes for acceptable public behavior while a family – and a nation – mourn a significant loss. And the author is someone entrusted by the current administration with positions well up in our Department of Defense. Small wonder that the vitriol in Washington seems to be at near record levels.
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