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Politics : Just the Facts, Ma'am: A Compendium of Liberal Fiction
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To: Sully- who wrote (70990)4/9/2009 4:18:35 AM
From: Sully-2 Recommendations  Read Replies (1) of 90947
 
Ann Althouse takes on Barney Frank: it's not a fair fight

Betsy's Page

Barney Frank, with his usual suaveness, recently called Justice Scalia a homophobe for Scalia's dissent in the gay rights case, Lawrence v. Texas. Law professor, Ann Althouse, outlines how utterly off target that accusation is.

<<< Frank points to Scalia's dissenting opinion in Lawrence vs. Texas—a case that struck down a statute criminalizing homosexual sodomy—and accuses the justice of thinking that "it's a good idea for two consenting adults who happen to be gay to be locked up because he is so disapproving of gay people."

But Scalia has written no such thing. Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down.

Now, it is true that Scalia wrote a cutting dissent in Lawrence.

Scalia didn't expand his opinion with a statement of sympathy for the gay men he would have let the state imprison. But his sharp words were not aimed at those men. Scalia made a righteous show of his dedication to a method of constitutional interpretation, following the original meaning of the constitutional text. In this analysis, any infusion of the judge's personal values is nothing but an illicit power grab. >>>

As Althouse points out, Scalia offended Frank by not writing any soothing words about how he personally has nothing against gays even though he was voting to uphold Texas's laws. That isn't his style. But that doesn't make him a homophobe.

<<< You may think it's cruel of Scalia to deprive us of soothing words, but don't be tricked about why he writes like that. Scalia is adhering to the most basic legal proposition that judges must decide cases according to the law and leave the rest to the processes of democracy. >>>


Obama and Frank prefer judges who make decisions with their hearts rather than based on the law and the Constitution. Those judges will write the soothing words and make the soothing decisions. But that isn't what we should be looking for in our judges.


<<< If Obama delivers nominees who've demonstrated their heart and empathy by reaching outcomes that accord with liberal political preferences, will liberals forget that we need to test the soundness of their legal reasoning? If Frank succeeds in getting people to believe that judicial opinions are the kind wishes of good hearts, we will rubber-stamp these seemingly good people.

If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered. >>>

betsyspage.blogspot.com
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