The bear joke is a Scalia classic…“The story is about the two hunters who are out in the woods in their tent and there’s growling in the brush near them,” Scalia told the committee. “And they open the tent flap and there is a huge grizzly bear and they start running. … And—and the guy who’s a little heavier and he’s running behind, he says, ‘It’s no use. We’re never going to outrun that bear.’ And the guy who’s running in front says, ‘I don’t have to outrun the bear. I just have to outrun you!’ ”
As the Senate chamber dissolved in laughter, Scalia sharpened his point, just in case no one got it. “It’s the same with originalism,” he said, referring to his preferred theory of constitutional interpretation. He doesn’t have to prove that it’s the best theory. Gesturing toward Breyer, Scalia said, “I just have to show it’s better than his.”
Nobody expected any less. But the two justices killed before the Judiciary Committee, raising the question anew: Why don’t they do this every week?
I wanted more! Fortunately, Hot Air has posted the entire hearing and it clocks in at a difficult-to-watch-in-one-sitting 2.5 hours, but I’ve been watching it a few minutes at a time — last night I watched about 20 minutes while on an exercise bike and it made the miles speed by — and I must say, this is a remarkably fine peek at the workings of the SCOTUS, the way the Justices think and work together. I take particular pleasure in watching two erudite men speak so fluently and instructively, and with depth, humility and humor, on the Constitution, the Bill of Rights, the Federalist papers and more.
As Karl says at Hot Air, you can skip through the thing and at almost any stop you’ll find something worth listening to. It’s great at the one-hour mark. It’s great again eight minutes later when Senator Dianne Feinstein makes a bit of a fool of herself, but both Justices gently let her off the hook. Frankly, the video is riveting, and I really urge everyone to try to watch it, even piecemeal, as I am.
Speaking of the SCOTUS — they heard an argument against distinctions in religious hiring practices the other day, and seemed mighty troubled by it, with so-called “liberal” and “conservative” justices expressing amazment at the government’s line:
President Obama’s Equal Employment Opportunity Commission claimed during oral arguments before the U.S. Supreme Court last week that it can order a church to restore a fired minister to a teaching position.
But that was a claim not even the president’s handpicked appointee, the very liberal Justice Elena Kagan, could accept as she and her colleagues considered Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. [...] The justices then rejected the argument of Leondra Kruger, Obama’s lawyer for the EEOC, who argued that there’s no ministerial exception in the Constitution, only the same rights that secular organizations possess to choose their own affiliations.
At this, Scalia exploded. “That’s extraordinary! There, black on white in the text of the Constitution, are special protections for religion. And you say it makes no difference?”
Kagan agreed with Scalia’s rejection of the argument that the First Amendment doesn’t protect churches from government ordering who they should hire as pastor or priest.
Justice Samuel Alito (a Catholic) made a critical point, asking if a Catholic priest married and the church removed him from ministry for violating Catholic doctrine, could the EEOC order him reinstated.
When Kruger answered no, Alito replied that EEOC was making a judgment that certain teachings — such as the Catholic belief that priests must be celibate — are more important than the Lutheran doctrine that ministers cannot sue the church.
Drip, Drip, Drip: This administration seems to really resent that it cannot yet control the churches. But they’ll keep trying. We’re “remaking” America, remember.