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.


Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

23 thoughts on “Great Moments in Bad Character Judgment”

  1. Thanks for the Laurence Tribe quote. On March 27th when you wrote this about Scalia and Alito: I’m actually a little surprised that anyone thought that either of these guys would vote to uphold.

    That strained my incredulity, and I almost commented: Is there anyone that thinks that? Anyone? Do such naifs exist?
    Thanks for proving the existence of at least of that tribe…

  2. Gotta wait for the decision to come down in June before the appropriate insult can be made. If it turns out that Scalia was just snapping the solicitor general’s jock strap in the oral arguments the insult will have to be adjusted.

    1. Ed, that’s a fair point. But how about this? Care to bet on where Nino comes out? How much? $100? $200? An even Romney $10,000? Pascal is waiting….

      1. Raymond Shaw is the kindest, bravest, warmest, most wonderful human being I’ve ever known in my life. Next to Nino Scalia, of course.

  3. “I had the privilege of hearing Justic Scalia address a small group several years ago. A warm, brilliant, avuncular man with a sense of humor and wit that just doesn’t stop. I have never met a more engaging personality.”

    Something about this post led to this search result. The link, of course, is to an unmentionable corner of the internet and left out of this comment.

    1. I’ve heard from many quarters of all political stripes that Scalia is indeed clever, witty and, well, avuncular. I’ve no reason to doubt any of it, and it has nothing to do with why anyone has a problem with him.

      1. I have heard Scalia speak. In the immediate aftermath of Bush v. Gore, at a Legal Ethics conference, he spoke about how ethical rules should not be enforced against judges.

        Scalia’s substance can not be moderated by style into avuncularity, and his style is and always has been primarily “asshole.” He’s a witless person’s idea of witty and an uneducated idiot’s idea of intellectual.

        1. Or, perhaps more precisely, an authoritarian’s idea of a witty intellectual. Scalia’s quickness of mind is equaled only by his paucity of scope. He’s the jurisprudential equivalent of your overly loquacious uncle whose semi-drunken rants refuse subtlety or growth. Alcohol being the metaphorical match for reductive authoritarianism here, natch….

          1. Also, the elites and pundits are always fast to paint somebody they like as pleasant, and then to use that to assert that they are good people.

        2. Actually, not at all.

          He spent a couple of days hanging around my law school several years ago, and spoke in our classes.

          My afternoon class of 50 or 60 was charmed by him. He was funnny, warm, engaging — yes, even charming.

          In the next class session, we discussed our impressions from earlier in the week. Students said, “I thought he’d be an @55ho1e, but boy was I wrong.”

          His style was appealing. This was almost a universal consensus among those who met him at the school.

          It doesn’t change his hugely flawed philosophy one bit, of course, which I detest.

          1. He is engaging and charming to people who fawn upon him, e.g. law students. If anyone pushes back at him, he becomes an asshole immediately. This isn’t an unusual character type and it’s befuddling that people don’t understand it.

          2. OK, thanks for your conclusions that I must have fawned on him, along with all the other law students and professors, most of whom measured as rather ferocious liberals.

            You’re certainly entitled to make up whatever facts support the conclusion you wish to draw.

            I think Scalia’s vicious, technocratic, an intellectual thug, and wrong, but he was still warm and engaging as a speaker.

    2. I once went to a funeral of a lawyer I had worked with. Justice Scalia–a friend of the deceased–gave the oration. It’s true. In person, he was charming, witty, and touching. Then again, Maistre was known to attend the condemned on the eve of their executions.

  4. Yes, the erudite legal defense of Bush v Gore that he relies on (shouting “Get over it” at those who would dare question the right of the cabal to select the President) certainly attests to his legal brilliance: which was sucking up to power and serving it faithfully. He is a thug.

    1. Funny you should say thug. When I think of Scalia the image of him flicking his fingers under his chin comes to mind. Brando performed the same gesture in The Godfather and I understand it to be the Italian equivilent of the one finger salute. Quite a classy guy with manners worthy of a mobster.

  5. I emailed Larry when his op-ed piece came out:


    I can only assume that your piece was a preemptive attempt to shame Roberts, Alito, Scalia and Thomas into behaving responsibly. As a shot across the bows, it’s a nice one; but after Bush v. Gore and more recent opinions, I don’t believe that Scalia and Thomas are shameable. I don’t think you do either, and I can’t believe that you actually think that “integrity” is a term applicable to the people who decided Citizens United in a way that went far beyond what even the plaintiffs sought.

    I hope I’m wrong, or at least that Kennedy will do the right thing and make my fears irrelevant; but I lack your (professed) confidence.

    His reply? “I take the fifth.”

    1. Some people did suspect that Tribe was trying to shame these guys, but as you say, assuming that they are shameable is also a character misjudgment. And “taking the fifth” is weaseling out: if they come through, he can say “I told you so.” If they behave as the partisan hacks that they are (or in Kennedy’s case, usually is), then he can say he was trying to shame them. A little too clever-by-half.

  6. Stalin described as unassuming? Then you clearly haven’t seen the worst.

    Try not to gag (courtesy of Johannes R. Becher):

    There you, Stalin, will stand among the blossoms
    of the apple trees of Lake Constance,
    and through the Black Forest your kindness wanders,
    and beckons over a shy deer.

    This is an excerpt, I don’t want anybody to suffer the poem in its entirety.

    The kitsch is even worse in the original Klingon, eh, German. Let me emphasize that the poem is not a parody; it is a very bad case of villain worship.

  7. IIRC, the entry I liked the best in the original TNR contest was Stalin misjudging Hitler. People who aren’t Stalin could be forgiven for misjudging just what Hitler was like, and what he’d, but not Stalin. He should have known far better.

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