9/22/2012

Antonin Scalia calls Richard Posner a liar for his review of Scalia's new book

Calling Posner a "conservative" is really quite misleading.  I don't know that he was ever a conservative, but he surely is someone who disdains precedent.  Since Posner references Easterbrook's foreword to Scalia's book, I thought that I would mention that Easterbrook has personally commented to me that his voting record actually lines up more with Diane Woods (a Democrat appointee on the 7th Circuit) than it does with Posner.  Posner's review of Scalia's new book with Bryan Garner is very tough, some would argue mean, and Scalia argues is dishonest.
U.S. Supreme Court Justice Antonin Scalia on Monday escalated a war of words with a prominent appeals court judge, saying the judge lied in a recent criticism of Scalia's judicial philosophy. 
Scalia, 76, the longest-serving justice and a leading conservative on the court, said Judge Richard Posner, of the 7th U.S. Circuit Court of Appeals, lied in a review in August of a book co-authored by Scalia. 
In the review, Posner accused Scalia of deviating from his own strict, text-based approach to interpreting law when he struck down a District of Columbia handgun ban in 2008 by considering the legislative history behind the law. 
"To say that I used legislative history is simply, to put it bluntly, a lie," Scalia said in an interview with Reuters Editor-in-Chief Stephen Adler. 
Scalia and legal scholar Bryan Garner were discussing their new book, "Reading Law: The Interpretation of Legal Texts," published by West, a unit of Thomson Reuters. . . . 
Scalia fanned that debate on Monday, saying Posner was only able to make such an assertion because he was writing in a non-legal publication, The New Republic. "You can get away with it in The New Republic, I suppose, but not to a legal audience." . . .
Ed Whelan has a discussion of Posner's attacks on Scalia and Garner's book available here.  Garner also has a response here:
Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism—through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision. . . .

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