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Wed Feb 27, 2013, 05:38 PM

Since we Asked... Scalia cannot plausibly be impeached for that comment

There were audible gasps in the Supreme Court’s lawyers’ lounge, where audio of the oral argument is pumped in for members of the Supreme Court bar, when Justice Antonin Scalia offered his assessment of a key provision of the Voting Rights Act. He called it a “perpetuation of racial entitlement.”

http://thinkprogress.org/justice/2013/02/27/1646891/scalia-voting-rights-act-is-perpetuation-of-racial-entitlement/



I read Scalia's latest and my first thought was, "Geezus... what does it take to remove this guy!?" I doubt I was the only person thinking that.

A judicial impeachment is similar to a Presidential impeachment. In both cases on paper an office holder cannot be removed for policy differences. A President is supposed to have committed an actual crime of some sort, and the judicial standard of serving with "good conduct" has been taken to also mean not committing crimes.

The Judicial standard is higher in one way, and lower in another way. "Good Conduct" of your office seems a bit higher a standard than merely not committing any "high crimes and misdemeanors." I think a judge could be convicted by the Senate for a pattern of impropriety even if not convict-able of a specific crime beyond a reasonable doubt.

But impeachment of a justice raises special questions of competence, especially with a life time appointment. A mentally incompetent SCOTUS member must be removable somehow but there is no mechanism to do so. The term of a demented congressman will eventually run out. The Constitution (as amended) gives the Cabinet powers to deal with an incompetent (mentally) President.

So if a Supreme Court Justice was demonstrably and dramatically incapable I assume that the Senate holds that sort of inability to do the job counts as being outside the sphere of "good conduct."

But a Justice could hold a view of Constitution or Law that not one single person in Congress agreed with but that haing an assholic view of things, in itself, should not be an impeachable offense. (Unless the view was something like, "The Tenth Amendment means pudding for everyone, to be paid for by Belgium," which would get into a sanity/senility question.)

(It will be interesting to see how many elected people will want to align themselves with Scalia's argument on the record. I suspect even some teapartiers will "no comment" that one. Romney would, of course, say, "those are not the words I would have used.")

As to whether Antonin Scalia could be impeached for mental incapacity... not so far. He is surely operating above the Clarence Thomas bar of competence.

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Response to cthulu2016 (Original post)

Wed Feb 27, 2013, 05:43 PM

1. What he said was

"gross" and "un-American"

Scalia: Voting Rights Act Is ‘Perpetuation Of Racial Entitlement’
http://thinkprogress.org/justice/2013/02/27/1646891/scalia-voting-rights-act-is-perpetuation-of-racial-entitlement/

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Response to ProSense (Reply #1)

Wed Feb 27, 2013, 05:46 PM

2. Just about the worst SCOTUS comment of the last century.

It would be hard to top, for shear offensiveness and extremism.

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Response to cthulu2016 (Reply #2)

Wed Feb 27, 2013, 05:54 PM

5. It's up there with "Three generations of imbeciles are enough" n/t

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Response to cthulu2016 (Original post)

Wed Feb 27, 2013, 05:48 PM

3. It will be interesting to see how many SC Justices want to align themselves

with J. Scalia's racist based comments. The way to defeat J.Scalia is for his fellow justices to not vote with him and to isolate him on the court. Who knows? Miracles can happen.

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Response to cthulu2016 (Original post)

Wed Feb 27, 2013, 05:50 PM

4. If it were up to me, he'd have been impeached long ago

On general principles, or for that silly hat he wore to the Inauguration.

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Response to Warren DeMontague (Reply #4)

Wed Feb 27, 2013, 06:05 PM

6. If it were up to me...

Well, it's a generally good thing I am not God of the Universe as I have a low threshold of piss off.

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Response to cthulu2016 (Original post)

Wed Feb 27, 2013, 06:18 PM

7. "term of a demented congressman will eventually run out" - Doesn't mean they won't be re-elected!

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Response to cthulu2016 (Original post)

Wed Feb 27, 2013, 06:20 PM

8. Impeachment would have to begin in the House, and a majority there seem to agree with him.

or at least count on him as a reliable Conservative Vote.

Eve if they wee so inclined, I can't imagine the Senate upholding an impeachment with Judge Roberts presiding.

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Response to Agnosticsherbet (Reply #8)

Wed Feb 27, 2013, 06:28 PM

9. IIRC correctly, the Senate trial precedes the House vote for Justices

With a President the House impeaches which triggers a trial in the Senate and if convicted the President is out.

With a Justice the House does the removing after a Senate trial. (Hypothetically, the Senate could convict, but the House not vote to remove.)

I do not know how the Senate trial is initiated -- presumably it first starts in the Senate Judiciary committee, but maybe it starts with a House recommendation.

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