RE: Justice Scalia

From:cohn@law.georgetown.edu To: regan@law.georgetown.edu, gottesma@law.georgetown.edu, peller@law.georgetown.edu, seidman@law.georgetown.edu, wtreanor@law.georgetown.edu CC: LawFacultyandVisitors@law.georgetown.edu Date: 2016-02-15 20:38 Subject: RE: Justice Scalia

I must chime in because I had the honor of knowing Justice Scalia, though we were far from close friends. For a short time, he was a visitor at Georgetown Law, where I first met him. Then, for a short time, he "worked" for me, teaching contracts in a bar review course, and later, also for a short time, he hired me as a consultant at the Administrative Conference of the United States. I also recruited him twice to talk to the annual black-tie banquet of the American Inns of Court, and our paths continued to cross in connection with the American Inns as well as at Georgetown. While we were not close, one of my cherished memories was two hours in a cocktail lounge in San Francisco - he saw me register at the hotel and asked if I had time -- while he waited for his son - the talk was warm and meaningful, and he listened to me even when he disagreed. Of course, he was a vicious questioner on the Court. I expect that most of us watched him in action. But he was not alone. Going back a decade or two, I experienced the questioning of Justice Frankfurter and Black in a case in which they did not like my position one bit. Frankfurter particularly, and Black a little less so (and with more of a southern graciousness), were just as vicious in their questioning. Of course, he voted in some (many?) cases differently than I would have liked. But, let us recall, he won only when he had four colleagues who went along - and he also did not always win. As far as I know, he was well liked by his colleagues, ever after he skewered them in dissents. His friendship with Justice Ruth Bader Ginsburg is well known - and her graciousness yesterday should be the pattern for all of us. Yes, I disagreed with many of his views and votes. But that does not take away from my admiration of his mind - and of the many hours he spent at Georgetown (I assume elsewhere as well) speaking with students. Indeed, perhaps the latter is a characteristic that we all should emulate. Thus, I join with Mike Gottesman and Mitt Regan and the gracious words of the Dean - as well as of Justice Ginsburg. Sherman Sherman L. Cohn, Professor of Law Georgetown University Law Center 600 New Jersey Avenue NW Tele: 202-662-9069 Washington, DC 20001-2075 cohn@law.georgetown.edu<mailto:cohn@law.georgetown.edu> For the most part, I was not an admirer of Justice Scalia's jurisprudence. I nonetheless believe that Mike Gottesman has it right. Whatever our differences, we're all ultimately united in a deep and profound way by our common mortality. I think that there are ways to respect that while remaining true to our political convictions. Best, Mitt Mitt Regan McDevitt Professor of Jurisprudence Co-Director, Center for the Study of the Legal Profession Georgetown University Law Center 600 New Jersey Avenue, NE Washington, DC 20001 Phone: 202-662-9414 Distinguished Chair in Ethics, 2015-2016 Stockdale Center for Ethical Leadership U.S. Naval Academy With respect to the votes Justice Scalia cast on the Supreme Court, I'd probably agree with Mike Seidman and Gary Peller 100% of the time. But I don't agree with their disapproval of the Dean's statement. Justice Ginsburg has said roughly the same as the Dean. Whatever one thinks of his jurisprudence, Scalia was an extraordinarily significant figure who also, coincidentally, was a friend of our institution. As for bullying and humiliating advocates who appeared before the Court, nobody on our faculty experienced that anywhere close to what I did. I didn't like it as it was happening, but I never doubted his "brilliance." It would be a sad day if, as an institution, we were incapable of honoring important public figures upon their death simply because most of us disagree with the positions they took. Our public face as an institution of scholars should suggest that we're open-minded and receptive to all views, even if (sadly) it's not always true. I do think it would have been prudent (if only to fend off the criticisms Mike and Gary have surfaced) to have included a qualifier in the public statement that suggested Scalia's views were controversial and not shared by all in our institution, but I think it's a big stretch to read the statement as seemingly embracing Scalia's views. It doesn't say that, and I didn't think it inferred it, either. Dean Treanor and Colleagues: Like Mike Seidman, I also was put-off by the invocation of the "Georgetown Community" in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic. I am not suggesting that J. Scalia should have been criticized on the day of his death, nor that the "community" should not be thankful for his willingness to meet with our students. But he was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the "culture wars" he often invoked. In my mind, he was not a "giant" in any good sense. It is tricky knowing what to say when a public figure like Scalia, or the late Robert Byrd, or other voices of intolerance, meet their death. But as an academic institution, I believe that we should be wary of contributing to the mystification of people because of the lofty official positions they achieved. I don't want to teach our students to hold someone like Scalia in reverence because he's a "Supreme Court Justice." Our proximity to official Washington provides an opportunity to see many public officials close-up, and to learn that there is nothing special that titles bestow--even a Supreme Court Justice can be a bigot, and there is no reason to be intimidated by the purported "brilliance" that others describe because, when you have a chance to see and hear such people close-up, the empowering effect is often, as it should be, de-mystification. (I was happy to meet Warren Burger as a law student for this very reason). We should never teach our students to be obsequious to those with power. The "Georgetown Community" could mean many things. In one sense, it is simply a legally constituted set of formal relations, and in that sense perhaps "the Dean," duly appointed by "the President," speaks for that "institution" of formal legal relations. But there is also a lived community that we inhabit, within the interstices of the formal and contractually defined roles, a community that exists in our relations with each other and with our co-workers and our students, a community that is constituted in our hallways and class rooms and lunch rooms, and in our affection for and commitment to one another, and, for many of us, a vision of how we could all be together in the law school, disagreeing often but always trying to be sensitive and empathic to all members of our community. That is the "Georgetown Community" that I feel a part of, a lived community of tolerance, affection, and care that so many have built for so long here. That "community" would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obseqiuosness. Sometimes the two senses of community might merge--the formal, legal institution might be so at one with the lived community that its legitimacy to speak for the "community" flows organically. But that is not our situation. Sincerely, Gary ________________________________ This is such sad news. I will never forget his lecture to our first year class in November. We thought he would leave right after the lecture, but he stayed in the Health and Fitness lobby long after the talk was over, engaging with students informally about anything they wanted to talk about, speaking with characteristic humor, passion, and intelligence. I know they will always treasure that memory. He cared deeply about the law and about those embarking on careers in the law. We have lost a giant. Sent from my iPhone On Feb 13, 2016, at 5:30 PM, Milton Regan <regan@law.georgetown.edu<mailto:regan@law.georgetown.edu>> wrote: Justice Scalia passed away today during a visit to Texas: http://www.politico.com/story/2016/02/breaking-news-supreme-court-justice-antonin-scalia-dead-at-the-age-of-79-219246 Best, Mitt Mitt Regan McDevitt Professor of Jurisprudence Co-Director, Center for the Study of the Legal Profession Georgetown Law Center 600 New Jersey Avenue, NW Washington, DC 20001 Phone: 202-662-9414 Distinguished Chair in Ethics, 2015-2016 Stockdale Center for Ethical Leadership U.S. Naval Academy