The Washington Post

Scalia criticized by conservative jurist Richard Posner


Liberals have denounced it as a purely political attack, They’ll probably start calling him “Sen. Scalia (R-Scotus).”

That’s okay. Scalia is more than able to handle such criticism.

But seems he’s also taking incoming from highly regarded conservative federal appeals court Judge Richard A. Posner, who questioned whether Scalia had veered into the political arena. “It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads,” Posner wrote Wednesday in Slate.

“Justice Scalia says that it ‘boggles the mind’ to think that Arizona ” could not enforce parts of federal immigration law “that the president declines to enforce,” Posner wrote, adding that Scalia also said the federal government was “‘refus[ing] to enforce the nation’s immigration laws.’”

“These are fighting words,” Posner wrote, while “the nation is in the midst of a hard-fought presidential campaign” and “illegal immigration is a campaign issue.”

“The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case,” Posner notes. “It seems rather a belated development to figure in an opinion in that case.”

After the ruling was announced, Scalia, in a “bench statement” that pretty much tracks his dissent, said, “The delegates to the [Constitutional] Convention would have rushed to the exits from Independence Hall” if the Constitution gave the feds exclusive control over immigration “that would be enforced only to the extent the president deems appropriate.”

Posner might think such words are “political,” but Scalia is undeniably right.

Of course, many of the state delegates would have run from the hall if the original Constitution had included a provision abolishing slavery.

Al Kamen, an award-winning columnist on the national staff of The Washington Post, created the “In the Loop” column in 1993.


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