story and photos by Michael Tilley
mtilley@thecitywire.com
U.S. Supreme Court Justice Antonin Scalia said Thursday (Feb. 26) that seeking cultural diversity among the nine members of the nation’s highest court is not a “good idea.” The quick and blunt response to a question from a junior high school student drew a smattering of laughter and applause from the more than 2,000 who gathered in Fort Smith for Scalia’s speech.
The event, held at the Fort Smith Convention Center, is the first of three Winthrop Paul Rockefeller Distinguished Lecture Series that are focused on the history of the U.S. Marshals Service. Lisenne Rockefeller, wife of late Lt. Governor Winthrop Paul Rockefeller, made a grant to the Fort Smith-based U.S. Marshals Museum in mid-2014 to fund the national lecture series. The three-year series is designed to bring officials from the executive, judiciary and legislative branches of the U.S. government to Fort Smith to speak about the U.S. Marshals’ history with each branch.
In January 2007, the U.S. Marshals Service selected Fort Smith as the site for the estimated 20,000-square-foot national museum. The museum is to be built on 15.9 acres along the Arkansas River that is being donated by the Robbie Westphal family. A ceremonial groundbreaking was held in September, and museum officials hope to have the facility open by late 2017. The planned $53 million museum's construction is a three-phase project, starting first with site work before moving to building construction and finally design and installation of exhibits to be housed at the museum celebrating the United States' oldest law enforcement agency.
Appointed by President Ronald Reagan and confirmed by the U.S. Senate in 1986, Justice Scalia, 78, has served as an associate justice for the U.S. Supreme Court for more than 27 years, and is the Court’s longest serving justice. Originally from New Jersey, Justice Scalia earned his bachelor’s degree from Georgetown University and his law degree from Harvard Law School. He practiced law in Ohio before joining the faculty of the University of Virginia School of Law.
U.S. District Judge Henry Hudson of the United States District Court for the Eastern District of Virginia introduced Justice Scalia. Judge Hudson is a former director of the U.S. Marshals Service under President George H.W. Bush.
THE CULTURAL DIVERSITY QUESTION
Selena Ellison, a student at Ozark Junior High School, noted that the newest Supreme Court Justice, Sonia Sotomayor, was the first Latina female appointed to the court. Ellison asked Scalia what he thought of having a more culturally diverse panel.
“I don’t think it’s a good idea,” he quickly replied, adding that the court’s job is to interpret the Constitution and not be representative of the U.S. populace. “You don’t want diverse people, you want good lawyers.”
Scalia had broached the topic of diversity prior to the question in his argument that the 9-member court was not formed to be a representative body. He noted that among the justices, six are Catholic and three are Jewish.
“This is really representative,” Scalia sarcastically noted.
Soon after his response to Ellison’s question, Scalia did soften his response, saying that “politically” he understood the desire for diversity.
“I shouldn’t have said that (it’s not a good idea), but it (diversity) has nothing to do with our jobs.”
ORIGINALISM
Prior to taking audience questions, Scalia reviewed his well-known position as an “originalist” when it comes to interpreting the Constitution to settle questions of law. He said many people refer to the Bill of Rights – the first 10 amendments to the U.S. Constitution – when asked about the source of American freedoms. Scalia disagrees with that common reference.
“I would ask you to reconsider that,” he said, noting that every “banana republic” and “dictator-for-life” implement a bill of rights.
Scalia said the former Soviet Union had a broader Bill of Rights than the U.S., but the “structure” of a government is the key to truly protecting freedoms. He said “proper structure” through a well-crafted constitution would maintain freedoms even without a bill of rights, but that the opposite is not true. He said there are many democratic countries, but “very few countries” have a true bi-cameral legislative body, a chief executive who is independent of the legislative body, and a chief executive with a strong veto mechanism.
He said many complain that the U.S. form of government leads to gridlock, which is how “how the Framers designed it.” Scalia argued that the so-called gridlock was intended “so only really good legislation can get through.”
“What I’m talking about is originalism. It (Constitution) means what it meant when the people adopted it,” Scalia said, with applause quickly following.
He criticized the judicial branch, saying it often attempts to “cram into the Constitution” rules on abortion, homosexual behavior, the death penalty and other issues. When Justin Nguyen, a student from Southside High School in Fort Smith, asked Scalia how he became an originalist, Scalia responded by suggesting the question should be why one would not be an originalist.
“We take Shakespeare to mean what he meant. Why not with the Constitution?” Scalia said, adding that the Constitution would never have been ratified if it included language saying the meaning of the Constitution could change at any moment based on the interpretation of nine judges.
“Why do you want to give it to nine lawyers to rewrite the thing?” Scalia said to another round of laughter and applause.
Earlier, Ateya Wright, a student at Kimmons Junior High School in Fort Smith, asked Scalia how he coped with the tough job of interpreting the Constitution.
“I don’t agonize at all,” the Justice quickly replied, adding that the Constitution is easy to interpret when you aren’t searching for new meanings to what the Framers adopted.
‘AVERSE TO TINKERING’
Not only did Scalia defend his focus on originalism, but he responded to an audience question about a possible national Constitutional Convention by saying he is “very averse to tinkering with the Constitution.”
Mentioning the Prohibition Amendment (in place between 1920 and 1933), Scalia argued that tinkering with the structure and process of the federal government rarely works well. He also said the 17th Amendment to the Constitution, in which the election of U.S. Senators shifted from state legislatures to a popular statewide vote, is another example of tinkering gone awry. That amendment was ratified in April 1913.
As do most Constitutional scholars, Scalia noted that election of U.S. Senators by state legislatures was a method to check the ability of the federal government to control funding to the states and interfere in the activities of state governments. Corruption in state legislative bodies – corruption often funded by the large monopolies that existed before the emergence of federal anti-trust legislation – resulted in a successful push to change the process to elect U.S. Senators through popular statewide votes.
Scalia argued during his Fort Smith speech that this “vastly different system” from what the Framers adopted means U.S. Senators “have no connection” to the states they represent, and therefore state legislatures have no recourse against Federal overreach.
“The protection was taken away because we tinkered with the Constitution,” he said.
OTHER POINTS, QUESTIONS
Scalia was asked about his most interesting case as an attorney. He replied that it was a case about a ceiling collapse at a Sears Roebuck store. The lead attorney on the case with Scalia took the time to go back to the store and physically crawl into part of the ceiling that had not yet collapsed. Through that hands-on investigation, the lawyer found a faulty building material and they were then able to win the case.
The story of the ceiling case got the attention of Braden Myers, a 9th grader at Chaffin Junior High School, who said he was impressed with the depth in which Scalia answered the questions. Myers also said he liked the story of the lawyer “who took that time to go back up into that store to investigate. I thought that was really interesting.”
Scalia was also asked to comment about political donations by corporations – a reference to the Citizens United case in which a divided Supreme Court said the government could not prohibit donations by corporations to non-profits that then use the money for political activities. The questioner at the Fort Smith event said she as an individual voter is “losing my voice” in the election process.
Justice Scalia, who concurred in the decision that corporate money could not be prohibited, called it a “total fantasy” and a “manufactured difficulty” that corporate money is swaying elections for either party. He said the big corporations give money to both sides and the money does not have an impact on election outcomes.
“Those who think that (the money will influence enough voters to sway elections), don’t trust the American people,” Scalia said.
He also argued that many states do not have limits on political spending by corporations and “Daddy Warbucks” has not taken over in those states.
REACTION
Fort Smith businessman Carl Davis did not express an opinion on the issues mentioned, but said he enjoyed Scalia.
“I like his candor. He tells it like it is ... or at least like it is from how he sees it,” Davis said.
Connor Eldridge, U.S. prosecuting attorney for the Western District of Arkansas, said it was “a big deal for Fort Smith and for all of Arkansas to have a Supreme Court Justice” come to the state because “the Constitution discussion is important for us all to have.”
Jim Dunn, president and CEO of the U.S. Marshals Museum, said the Scalia visit elevates the “recognition of the U.S. Marshals” and what the service does for the country. Dunn said the lecture series is not a fundraiser for the museum, “but on the other hand it demonstrates that we are serious” about the museum being developed “and the educational aspects a fully realized” museum will deliver.