Great Moments in Bad Character Judgment

About a quarter century ago, The New Republic had a contest asking for the record in bad character judgment. Its own example was someone (perhaps Lincoln Steffens) who had described Stalin as “unassuming.” It asked whether any of its readers had a better example. The winner was my friend Gideon Rose, now editor-in-chief of Foreign Affairs: Gideon reported that he had heard Rep. Stephen Solarz of New York, then the chair of the House Foreign Affairs Committee’s East Asia subcommittee, describe North Korean dictator Kim Il Sung as “avuncular.”

Well, now we have a third entry. From Harvard’s Laurence Tribe, in 2011, on the litigation over the Affordable Care Act:

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

No one should compare Scalia to Stalin or Kim, but we should consider him insulted.

[Cross-posted at The Reality-Based Community]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.