There is an interesting point to consider from a recent Antonin Scalia talk at NYU, where he was assailed by a student on the judges dissent in Lawrence. The student asked the Scalia - "Do you sodomize your wife?". Scalia's reply was "the question is unworthy of an answer".
Scalia does not believe there is a constitutional right to privacy, and therefore the government has a legitimate authority to legislate consentual adult sexual behavior. Therefore, I humbly suggest that this same question should be asked in an appropriate forum - in every senate judicial nomination hearing where the nominee does not believe in such a right.
(notes cribbed from The Two Percent Company.)
Sunday, April 17, 2005
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2 comments:
Dave--
That's an absolutely ridiculous question to ask, and it's also a frankly dumb line of argument.
First, as to the asking of that question, I don't believe that there ought to be idelogical litmus tests of that sort, regardless of the party applying them. Confirmations of these sort are intended to put good judges on the bench, based on ratings, anecdotal comments from the lower benches, judicial temperament, etc. The goal is not that the Democrats or whatever minority party subvert the Constitution by forcing the President, who has power of nomination, to pick nominees with which they agree. The goal is to put good JURISTS on the bench, not good robots.
Second--you would not seriously consider asking similar questions--a Mark Fuhrman type, n-word question, a question such as "Do you hate gay people" or "Do you dislike my cousin?"
These questions are irrelevant, and you said to ask the question in a forum in which it's utterly inappropriate; and besides, aren't you guys so righteously anti-norms as to sex that you wouldn't DARE question a nominee...
Would you ask that of a gay guy or gal?
Well I'm glad to have provoked you, but I wasn't entirely serious. It was an attempt to be Swiftian.
In any case, I will answer your question somewhat seriously. If there ought to be a litmus test, hypocracy is rather a good test subject. How about the question: Do you believe that the government has a right to ask and determine if you pratice sodomy with your wife? Perhaps Justice Scalia's answer would be yes. And maybe that's even the correct constitutional answer, but it certainly brings the topic of personal privacy into clearer relief.
I fail to see the connection between that and putting pure partisans or robots on the bench. I also don't see the connection between any legal question and "Do you dislike my cousin?" And yes, such lines of questioning would be no less appropriate to a woman or gay man.
And who are "you guys", anyway? What am I being labeled today? Rightously anti-norms??
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