Justice Scalia is a very bright guy, but here is the proposition that we see in the law way too much. You take an outrageous position and then in a low mellow tone act like it is everybody else that is out of whack. We have to put up with it everyday in court where some attorney walks in and tries to argue that it is night when the Court is obviously being conducted during the day. And, then when challenged these attorneys just shrug their shoulders and say "what", as if nothing is not serious wrong with their thinking.
As my wife asks, "what are they suppose to do? It is the only defense they have". My response is that they should do the best they can for their client to clean up the mess, and extricate the client from the case as advantageously as possible. But, that is not what they do. Somehow these attorneys have been taught to argue the absurd and to take the case to the nth degree, all the while running up the damages and fees and billing the bejesus out of their client. Of course it is wrong. Everybody is entitled to a defense, but nobody should be subjected to a totally absurd argument with the smugness of Karl Rove.
Of course, you can forgive an attorney that is trying to do his job (although badly) and to make a living. It is hard to forgive someone like Justice Scalia, for whom a livelihood is already provided. The mistake with putting Scalia on the bench is that he is an advocate. Justices do not need to be advocates. He condones torture, suggest that the government can smack a suspect in the face, and then pretends that we are all idiots. (You can hear the interview by clicking here).
Although not said while sitting on the bench, what license does such a thing give to any police officer in this country. It is fine to call someone a terrorist, but what he is saying is taser a suspect, hit a suspect, kick the crap the suspect, water board the suspect as long as you are trying to gain information -- in short as long as they are not telling you what you think you want to hear, or not pleading to a crime they did not commit.
Some years back there was a little town -- a speed trap -- off the Interstate in South Texas that lowered the speed limit to a ridiculous low mph so it could pull over drivers for speeding. Then it started accusing young adults and college age kids of having marijuana that the officers apparently planted while giving the ticket. Of course it got to be so many of these, and so many complaints that they were framed that the local yokels needed to start obtaining confessions. The device they used was not very complicated. They water boarded the teenagers and young adults until they confessed on camera. They tortured our teenagers and our young adults to do this, and all so they could write tickets, which was the only real revenue for this town. Some where young professional students, like law students.
Forget terrorist for a minute. What Scalia says is that the Constitution does not protect our kids, our teenagers and our young adults from the excesses of vigilante cops and corrupt public officials that want to right tickets for no better reason than to collect revenue.
The problem for us honest Third Wave lawyers is how do we compete, how do we represent our clients, with this attitude that the argument of the absurd is okay and when our appeals courts are filled with advocates and not judges that rely on absurd arguments?