Ed Whelan at National Review On-Line has once again found low hanging fruit on the left end of the political spectrum, and he has grabbed it to feed readers hungry for an analytically correct argument.
The low hanging fruit this time is the claim that Justice Scalia must recuse from the marriage cases now before the Court because in public speeches he explained his vote in prior cases on related topics, and (unlike in his written opinions) he did so in a boorish way that reveals his personal prejudices against homosexuals.
Knowing there is no argument on recusal, some on the left have resorted to calling for impeachment:
Here also, the argument fails. In a colloquy that was part of a speech at Princeton Justice Scalia compared moral feelings about homosexuality with moral feelings about murder. This was inappropriate and revealed that, on this issue at least, Justice Scalia’s views are far from the mainstream (several of this Country’s oldest religious denominations now bless same sex unions, which are legally recognized as marriages in nine states). Justice Scalia’s speech was revealing about him but was hardly a high crime or misdemeanor.
Whelan responds here:
Of course Whelan is correct on the law. Whelan, however, refuses to recognize that the speech was very bad taste at the very least. The best remedy is neither recusal nor impeachment. It is for the remaining Justices to do what they have done in the past: make up their own minds, giving whatever respect they believe due to the views of this particular colleague on the Court.