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Scalia blasts 'judge moralists'
in speech at Chapman law school

By Gillian Flaccus

August 29, 2005
ORANGE U.S. Supreme Court Justice Antonin Scalia blasted what he called "judge moralists" and the infusion of politics into judicial appointments during a Monday night lecture that capped a day of activities celebrating the 10th anniversary of the Chapman University School of Law.

Scalia's tone was notably more serious than earlier in the day, when he sparred with law school students and undergraduates who participated alongside him in the re-enactment of a century-old landmark case.

Speaking before a packed auditorium, Scalia said he was saddened to see the U.S. Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, assisted suicide, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.

"I am questioning the propriety indeed, the sanity of having a value-laden decision such as this made for the entire society ... by unelected judges," Scalia said.

"Surely it is obvious that nothing I learned during my courses at Harvard Law School or in my practice of law qualifies me to decide whether there ought to be, and therefore is, a fundamental right to abortion or assisted suicide," he said.

Scalia also railed against the principle of the "living Constitution," saying it has led the U.S. Senate to try to appoint so-called politically "moderate" judges instead of focusing on professional credentials and ability.

"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?" he said, to laughter and applause.

"Once one adopts this criteria, of course, the Constitution ceases to perform its principal function, which is to prevent the majority from doing what it wants to do."

Scalia didn't make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it as he spoke of the politicizing of the judicial process.

"Each year the conflict over judicial appointments has grown more intense," he said. "One is tempted to shield his eyes from the upcoming spectacle."

Earlier in the day, Scalia was much less serious while re-enacting the landmark 1905 Supreme Court case Lochner v. New York with five recent law school graduates, three undergraduates, California Attorney General Bill Lockyer and a Chapman professor.

The original court ruled that the state could not impose laws that limited bakers' hours because to do so violated the liberty and due process of the bakery owner. On Monday, however, the mock justices overturned that decision in less than 30 minutes of debate.

"There will be no majority opinion. This will be one of those unpublished opinions that will not be citable before the Supreme Court," Scalia, who played the role of Chief Justice Melville Weston Fuller, joked after announcing the students' decision.

The debate was lighthearted, as participants made jests on topics ranging from Scalia's nine children and Italian heritage to his reputation as a die-hard constitutionalist.

"I think one of your successors 100 years from now is always going to ask us to focus on the original (constitutional) document," professor John Eastman, who played the role of Lochner's counsel, jokingly told Scalia during an exchange about the role of due process.

At another point, Eastman said the baker who worked the extra hours wanted to work to get extra money for Christmas.

"Maybe he wanted to buy a new crutch for Tiny Tim," Scalia interjected, to laughter from the crowd. "Please, counselor, don't read all these tenderhearted things into it."

Eastman later argued that the state law had been sponsored by German union members who wanted to prevent competition from harder working Italian immigrant bakers. To that, Scalia replied "Mama mia!"

Scalia also taught a constitutional law class Monday morning at the school and unveiled a memorial to law and liberty on the campus.