Heather “Digby” Parton’s screed about Justice Scalia’s “depravity” and the death penalty gives new meaning to the word “dishonest.” Call it the “Digby” dialectic!

What little I know about Heather Barton is that she is a liberal political blogger. For unexplained reasons, she selected “Digby” as her pseudonym. Here’s a photo, albeit a strange one, that provides a little additional detail.

Photo credit: Down with Tyranny. On the left, with a death star gaze, is Katrina vanden Heuvel, editor and publisher of The Nation. On the right, Digby.  This was the occassion for the photo: "If you're going to be hanging out with a horde of folks for the giving out (and receiving) of prizes, I suppose you can't do much better than a crowd of -- at least theoretically -- unreconstructed lefties like last night's festivities for the bestowing of the 2014 Hillman Awards, imbued with the spirit of the great labor organizer and leader Sidney Hillman, a stalwart of the time when a union wasn't just about labor-management negotiations but about improving the lives of its members and even the country as a whole, through housing and social-welfare programs. Some of us were there particularly to share in the thrill of our pal Digby receiving the Hillman Prize for Opinion and Analysis Journalism, and a thrill it was."

Photo credit: Down with Tyranny. (DWT). On the left is Katrina vanden Heuvel, editor and publisher of The Nation. On the right, Digby. The occasion for the photo according to DWT was the following: “If you’re going to be hanging out with a horde of folks for the giving out (and receiving) of prizes, I suppose you can’t do much better than a crowd of — at least theoretically — unreconstructed lefties like last night’s festivities for the bestowing of the 2014 Hillman Awards, imbued with the spirit of the great labor organizer and leader Sidney Hillman, a stalwart of the time when a union wasn’t just about labor-management negotiations but about improving the lives of its members and even the country as a whole, through housing and social-welfare programs.
Some of us were there particularly to share in the thrill of our pal Digby receiving the Hillman Prize for Opinion and Analysis Journalism, and a thrill it was.

OK, “Digby” let’s talk. Be forewarned, however. Afterwards, we won’t be friends.

Digby, I want to discuss your Salon piece of yesterday, to wit: Scalia’s Utter Moral Failure Exposed. That’s the one with these subtitled lines, “He doesn’t think executing an innocent man matters. How on earth can such a depraved human be on our Supreme Court?” Let me quote the entirety of your piece for the sake of thoroughness and, most importantly, because your piece is so nastily florid that it helps make the point of this post.

So, after the not too flattering photo of Scalia that you or your editors added and which we see below, your defamatory rant reads like this:

Supreme Court Justice Antonin Scalia (Credit: AP/Charles Rex Arbogast)

Supreme Court Justice Antonin Scalia (Credit: AP/Charles Rex Arbogast)

While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

– Justice Antonin Scalia

One might wonder how he can stay on the court after the revelation last week that two convicted murderers he once described as lucky to be given the blessing of a lethal injection have turned out to be innocent. That’s right, this is about the case everyone’s been talking about — the two brothers, both mentally disabled, who were railroaded onto death row some 30 years ago with coerced confessions by a corrupt police department. As the New York Times reported:

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.

The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.

They were 19 and 15 at the time of the murder and their conviction was based on nothing more than their coerced confessions, one of which was said to have ended with the defendant saying, “Can I go home now?” It was a famous case, used often by law and order Republican politicians in North Carolina as an electoral cudgel with which to beat Democratic rivals over the head. The state appeals process eventually reduced the sentence of one of the defendants to life in prison but until a state commission with power to subpoena evidence looked into it, the DNA from the scene was not tested and other evidence from the crime scene that implicated another convicted rapist was never processed. When they were, they exonerated these two men.

What exactly was it that Justice Scalia said about them? Well, he cited this particular case in the decision on Collins v. Collins back in 1994 in which he disagreed with Justice Harry Blackmun on the constitutionality of the death penalty. This was the famous case in which Justice Blackmun disavowed his former support for capital punishment and declared that he would no longer “tinker with the machinery of death.” Scalia wrote, with characteristic sarcasm:

Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

Yes, how very enviable. Unless the defendants are innocent, in which case it is as horrifying as the brutal slaying of the victim, particularly after 30 years spent imprisoned in a small cell waiting for the day that he will know in advance he is to die. That alone is cruel and unusual punishment. Not that Justice Scalia sees it that way. (His comments suggest that the methods of punishment should be directly correlated to the luridness of the crime, an antediluvian concept rejected by the Enlightenment-influenced writers of the Constitution he alleges to take so literally.)

Death penalty supporters inevitably use cases like this to illustrate that “the system worked” and, by implication, always works. Except that’s sophistry and everyone knows it. The only reason it worked in this case was because the state of North Carolina empowered an outside commission to investigate. And what they found was malfeasance, a coverup and a corrupt indifference to justice. The legal system obscured the truth at every level and every step along the way. There is no way of knowing how often that happens but any sentient being realizes that it is impossible that this was the only time.

Worst of all, Justice Scalia and other death penalty proponents who find nothing immoral in the state’s conscious, coldblooded taking of a life are equally unconcerned that they might be taking the life of an innocent person. The horrifying injustice in such a mistake (or criminal corruption) is irrelevant. Apparently as long as the train of the legal system runs on time there’s no cause for him to lose any sleep. Indeed, Scalia has said so:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

This man claims that he could not be a judge if he thought his participation in the death penalty was immoral and yet he does not believe it matters under the Constitution if the state executes innocent people. How on earth can such a depraved person be on the Supreme Court of the United States? On what basis can our country lay claim to a superior system of justice and a civilized moral order when such people hold power?

Dear Digby, let’s start with your lack of credibility. In court, Digby, we often judge credibility by looking at qualifications. Aside from the fact that you recently got a writing award from “unreconstructed lefties,” you apparently keep your qualifications hidden. See, for example, here where you were quoted saying: “I feel my ideas should stand on their own without the authority (or lack thereof) of my own story.” That is disingenious. No one wants to know your shoe size, an informed reader wants to know what qualifications you have to write what you write. Remember Digby, you have elected to play God and judge the Justice’s soul.

I believe I understand why you hide your qualifications. I was able to find the following smidgen about you: “She studied theater at San Jose State University (then known as San Jose State College) and worked on the Trans-Alaska Pipeline System and for a number of film companies, including Island Pictures, Polygram, and Artisan Entertainment.” Digby (blogger)Wikipedia, the free encyclopedia (last accessed September 8, 2014).

Those are wholly insufficient qualifications for asserting that Justice Scalia is immoral and depraved. Or am I missing something? Have you seriously studied the great books about the meaning of justice? Have you steeped yourself in the study of morality? Do you understand that there are important conceptual differences between morality and justice? Have you spent any time in a philosophy department or at a convent or seminary? Do you have the slightest bit of journalistic training? Have you been a lawyer? Have you been a judge?

Tell me, just what qualifies you for writing a piece calling Justice Scalia and judges like him “immoral” and “depraved.” Those are fist fighting words and you know it. A cute but fake name does not give you a pass and it provides no qualifications for the task you undertook. So far as I can tell, there are few, if any, external reasons to trust your skill, your integrity or your objectivity in judging the morality or depravity of anyone let alone a Supreme Court Justice.

While you bury your background, I know this: Unlike me, you have never consigned a man to die by the death penalty and then opened the paper the next morning to see that you are responsible for another human being’s demise. Digby, do you see why I take your screed personally? Alas, with your superior “progressive  values,” I am betting you don’t care who you trash.

I also know this: Unlike Scalia, you have not devoted your life to the study of our Constitution and the application of that document to the gut wrenching business of overseeing the killing of human beings. The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases. If you are shocked about that then you are even sillier than I suspected. Are we judges required to ignore our oaths of office because delicate snowflakes such as yourself find an imperfect world jarring?

A perfectly moral, and a perfectly just, argument supports the assertion that our Constitutional order requires due process in the death penalty context as in all others but never perfection. If it were otherwise, and as Scalia tentatively reasons, the words of that great document would be different and, in particular, the notion of “democracy” in the death penalty realm would become meaningless. No lesser person than the great Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to Hell I will help them. It’s my job.” Was Holmes “immoral” and “depraved?” By the way, have I stretched your knowledge of history?

Scalia accurately states that the: “Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”  His statement is not an admission of depravity but a description of over 200 years of jurisprudence. Is Scalia “immoral” and “depraved” for telling the truth about the undisputed history of the Supreme Court since the founding of the Republic?

What’s more, you know Justice Scalia possesses a deep and abiding faith in his Roman Catholic religion. You also know that the Roman Catholic Church values the life of a person at least as highly as you do. Despite these facts, you headline your piece with this: “He doesn’t think executing an innocent man matters.” (Emphasis added.) Of course, Scalia never said or even implied that the death of innocent people doesn’t matter. Putting words into the Justice’s mouth while simultaneously denying without any basis his profession of faith and morality is exactly what one expects from the mind of a failed theatre major from San Jose State College who finds a script that needs to be rewritten to satisfy her narcissistic need to play a fanged Mother Teresa. Nothing is too outrageous for Digby and the cause.

In summary, Digby you have consciously lied. Justice Scalia may be many things but you know in your heart that he is neither “immoral” nor “depraved.” In short, you deserve harsh condemnation for the Digby dialectic.*


*As this blog in other places proves, I hold no brief for Scalia or the Supreme Court. I just can’t stand intellectually dishonest and intentionally mean-spirited attacks on the federal judiciary and the utterly fallible but basically decent men and women who serve the People as Judges and Justices.

Update on September 9, 2014 at 1:48 PM CDT.  After I retrieved the original version from Salon, the main title was changed. It now reads: Scalia’s utter moral failure: How he destroys any claim to a superior system of justiceSo far as I can tell, no other changes were made.





56 responses

  1. I have previously respected your views, although our politics are far apart. But this arrogant defense of Scalia, one of the most intellectually dishonest men to ever serve on the Supreme Court, is disgraceful. No, you hold no brief for Scalia or the Supreme Court, but you do hold a brief for the sanctity of “due process” over the reality of the appalling and horrifying case she wrote about. Your argument from authority is a classic logical and rhetorical fallacy: I am a judge and I know what I’m talking about, but you, Digby, are no one important. Why, you don’t even have a law degree…Therefore I am right and you are wrong. I can talk authoritatively about questions of morality, but mere human beings (especially “lefties”) have no right to be heard about them. Moreover, I have even imposed death sentences myself. And my oath of office makes me a better judge of morality than a “snowflake.” Can’t make an omelet without breaking a few eggs…too bad if the state kills an innocent person, but at least the process was fair. No need to look behind the curtain….
    And only those inside the process get to criticize it or even have an opinion about it, while I get to call you names: “fanged Mother Theresa”? “Failed theater

    Was Blackmun’s refusal to “tinker with the machinery of death” a violation of his oath of office? You can’t both be right.

    No, your exaltation of process over results is revolting. And both your views and Scalia’s make me embarrassed to share a profession with you.

  2. What are the qualifications necessary for a blogger or regular citizen to judge someone else?

    Digby can be cited for going over the top — such is the nature of blogger advocacy surely — but this qualifications business is pretty lame, judge. Anyway, Dahlia Lithwick, who knows a bit more about the law than Digby (though perhaps doesn’t have the Ph.D. in ethics necessary to judge someone?) uses comparable language. Perhaps, she is a fairer target.

  3. Dear Judge Kopf: I’ve never found condescending, dismissive, and snarky writing to be an effective argument technique — it says more about the writer than it does about the target of the writing. Since when do we need qualifications such as serious exposure to the great books, time spent in philosophy departments, convents, or seminaries, or legal training to express our opinions about right and wrong? Don’t we begin to form our beliefs about justice and morality long before college or even high school? Most of us, in fact, learn about those from our parents, our first teachers, and our playmates, and the beliefs we form in our very early years stay with us for our lifetimes. I could have cut all my college philosophy classes and still formed the opinion that the death penalty is immoral — under all circumstances.

    You didn’t like Digby’s use of the words immoral and depraved to describe Justice Scalia, just as many didn’t like it when you told him and the other justices to shut the f*** up. Both you and Digby should always have the right to say what you want however you want, and I said so during the stf up debate. But you should also be aware — if you care — that at least one reader was just as offended by what you wrote about Digby as you were about what she wrote about Justice Scalia.

  4. Yeah… I suppose it’s somewhat inevitable that a longtime federal judge would lose sight of the problems with the pure argument from authority on non-legal questions, but I find this post surprising given Judge Kopf’s previous writing on this blog.

  5. RGK,
    I may disagree with Scalia’s, but I respect him as an extremely intelligent (far more intelligent than I) jurist whose system is an effective solution. Attacking him personally is uncalled for, and Ms. Digby is engaged in yellow journalism. Bluntly, she’s a shitty, shrill writer.

    I agree with what you say (I especially hate seeing personal attacks on people who administer the death penalty system and try to make a fair justice system) but I think that Mark Twain’s quote applies here.

    “Never argue with a fool, onlookers may not be able to tell the difference.”


  6. Wait a minute. Are you saying that there are people who read Salon? This Roman Catholic, union-loving lefty gave it up as mindlessly myopic a long time ago. I suspect that Digby’s post got more hits because of this blog than it would have otherwise. I agree with Joe, Dahlia Lithwick holds herself out as an expert on this stuff and is more deserving of the commentary. Mr. Torvik and I often write posts about what poor legal commentary she and Jeffrey Toobin provide their readers.

    In any event, it is true that Justice Scalia never said that executing the innocent doesn’t matter. But a fair reading of his quote would be that in addition to making a historical point about whether the issue has been decided, Justice Scalia was saying that he also believes innocence is irrelevant as long as the innocent person received due process. A reasonable person might also think that innocence should matter to someone whose job title is “Justice.” A reasonable person could find the idea that innocence is irrelevant as long as due process is satisfied horrifying and antithetical to the promise of life, liberty, and the pursuit of happiness set forth in our country’s founding documents. A reasonable person might also think that those who hold ideas that are antithetical to our country’s founding documents should not be given positions where they can interpret the meaning of those founding documents. I’m not saying that I necessarily agree with Digby. Whatever the merits of his death penalty jurisprudence, Justice Scalia is pretty good on the 4th and 6th Amendments and has a few pro-employee employment law decisions too, but I don’t think her larger point is all that outlandish.

  7. Matt,

    I take your point. Please take mine as well. Calling someone like Scalia immoral and depraved is evil. All the best.

    All the best.


  8. Given Scalia’s suggestion that those RC judges who agreed with Mother Theresa and the last three Popes on the death penalty should resign she was an odd comparison. Scalia may have spent a life time studying law, but that does not prove he was any good at it. Besides he likes to provoke this type of response. I think you are demonstrating the effect of wearing a black dress for too long. Next you will joint Don Lay in suggesting lawyers should crawl on order of the Federal Judiciary.

  9. Dear Richard,

    I have a pending death penalty case, will I be “immoral” and “depraved” unless I, like Harry, “refuse to tinker with the machinery of death?” I respect your views and I want a serious answer to that question. I await your response.

    All the best.


  10. In other posts, you have struck me as a deeply thoughtful person who takes ideas seriously and engages them carefully. In this post, you devote the bulk of your space to a pure argument from authority (Digby has fewer qualifications than me, therefore she is wrong) rather than an actual argument (here are the reasons why she is wrong). Given that there is an actual argument well within your reach, I find it surprising that you spend so much of your time disparaging Digby’s credentials rather than making the argument.

  11. Repenting lawyer,

    Oh, my goodness, you are cruel. A comparison to Don Lay? Your use of that stiletto leaves me bleeding like Riff in Westside Story.You are also really, really funny and well informed. Thanks for the smile.

    All the best.


    PS I once thought I would have to break up a real fight between Judge Lay and Judge Ross. Lay was very much like a rapid little rooster when he got mad, and Don Ross, while slow to boil, towered over him with more than a little menace. It is a memory that I will never forget.

  12. If I may bore everyone with a famous tale:

    After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: “Do justice, sir. Do justice.”

    Holmes had the carriage stopped. “That is not my job,” he said. “My job is to apply the law.”

    There are many excellent reasons to denounce Justice Scalia as an immoral hypocrite, but this is not among them, for although they fail far too often, we expect our judges to apply the law. In our infinite wisdom, we have chosen as a society to execute convicted murderers, knowing that we do get it wrong from time to time. The failure is ours, “Digby”, not his.

  13. Griff,

    Before I hit “publish,” I thought a lot about your point. I came to a different conclusion than you, however, about what was truly important. All the best.


  14. RGK, you overdid it here, and in fact made no sense. First, her “qualifications” or lack thereof are irrelevant, and your attacking her on that basis is just an authority argument, one of the more dishonest forms of dishonest reasoning out there, recognized as such in any elemenatry text on logical argument. Unlike others, such as non-sequiturs, it’s also a form of bullying. It ill becomes you.

    Scalia’s correct assertion that the Court has never ruled on whether actual innocence is constitutionally cognizable is entirely inoffensive. It’s a fact. But two things need to be considered.

    One is that the average person may not be especially dishonest and find morally depraved the apparent callousness to the minor detail of whether a person he’s putting to death actually did the crime. It’s possible for an honest person to read something like that and overlook such subtleties, which is why an appeals court may reverse you sometimes. Either you or the appeals court have it wrong, but you still may both be honest.

    Second, in its context, it does appear that Scalia is content with this situation, although he may not be. The issue here is not, as you wrongly characterize it, that the process is imperfect and that innocent people may sometimes be executed. The question, rather, is whether it’s OK to put someone to death, when you know for sure he’s not guilty, just because the procedural machinery ran correctly. That’s a very different matter, and Scalia’s Roman Catholic faith is pretty clear that that is not OK. Whatever he professes along that line is off-point here.

    It’s a reasonable opinion, although perhaps incorrect, that if Scalia is OK with putting a known innocent person to death just because procedure was followed – which I don’t think he actually said – that he is morally depraved. One can make a reasonable argument against that assessment. But it is certainly not defamatory. Defamation requires the assertion of a fact that is false. Digby asserted no such facts that you named. She just expressed an opinion that you disagree with, which however incorrect, is not defamatory.

  15. I am a simple fellow and do not claim to be a legal scholar – just a journeyman lawyer who has kicked around the “halls of justice” for 33+ years. The comments criticizing (nay, attacking) the Judge’s opinion piece here are predictable – anytime Scalia’s name is set forth the knee-jerks begin, and OMG!, it involves the death penalty, too, another hot issue. The bottom line “beef” with many is the presence of the death penalty on the books, which then gets turned into personal attacks upon the judges who are sworn to uphold that law and apply it as best they can. Although not directly related to the present discussion, I have a rhetorical question that I pose to Digby: Are there issues of immorality and depravity for those who support legal abortion, a legal practice that many sincerely believe involves the taking of “innocent” life? Just askin’. Let the knee jerks begin . . . . .

  16. I’m betting that no one here wants to trade places with you in running “the machinery of death.”

  17. Peter, you know that this question–whether the Constitution would permit putting a known innocent person to death because he was given due process of law throughout the jury trial process and beyond–cannot be answered by Scalia or any other Justice without a concrete case. For example, one would need to know everything about the viability of the clemency process and a lot of other things. Conjuring up amorphous ghosts is poor substitute for reason and even worse basis for labeling good people “immoral” and “depraved.”

    All the best.


  18. Marv,

    Spoken like the “aw shucks” country lawyer that I knew so many years ago. Incidentally, in my book that is high praise.

    All the best.


  19. I’ll just jump in the chorus line here and say that this mean (in all senses of the adjective) little post demeans its author *at least* as much as its object. Your heavy lean on arguments from authority discredit you before you get to your point. As someone who did spend four undergraduate years reading Plato, Spinoza, Kant and the rest, and three years of law school getting the lay of our constitutional land (I know, I know, this is a far cry from spending a whole life steeped in these issues), I’m pretty confident that all that isn’t necessary to have perfectly legitimate opinions about whether the state should execute innocents.

    Such sneering elitism is quite an odd pose for someone to take while supposedly defending “democracy” in the realm of the death penalty. (Like, really: seriously???)

    In your court room the force of your words comes derives in great part from your position of authority, but in the public sphere relying so heavily on that authority frankly makes you look silly, weak, and bitchy.


    Also, relying on Mr. Justice Oliver “three generations of imbeciles is enough” Holmes as an authority on how far judges should bend over to carry out the whims of the legislature seems like a bad choice of exemplars to me.

  20. Judge Kopf —

    I agree with you wholeheartedly that Ms. Parton’s reasoning is flawed and her ad hominem attack on Justice Scalia is wrong. I thought so when I read the piece on line yesterday.

    That said, I think I’d go about proving that differently than you did.

    The whole business about her background is irrelevant. “Credibility,” at least in the sense for which background might be material, refers to things like the accuracy of an eyewitness’s account of an accident (“Was the light red or green?” “How can you say the light was red when your back was to the intersection?” “Isn’t it true that you were convicted two years ago of lying to a grand jury?”). Here, we can check the accuracy of the facts Ms. Parton sets out, so we don’t need to test her credibility on that score. The issue is her interpretation and analysis of a set of facts, and those things must stand on their own. (Think of it this way, if I write a brief asking you to grant summary judgment, do I need to include my CV as an exhibit? I don’t, because it doesn’t matter. You’ll read my arguments, the relevant legal authorities and the record and decide if I’ve made any sense.) Would you have been more likely to accept her arguments if she had JDs from all of the most highly ranked law schools, taught at Harvard Law School, wrote all of the ALI’s restatements and had recently completed an internship with the Dalai Lama?

    I also don’t think we can know whether Ms. Parton “lied” when she wrote that she believes Justice Scalia is “immoral” and “depraved.” We can look at the facts and her argument and disagree with her, but we cannot read her heart any more than she can read Justice Scalia’s heart. She may well believe everything she wrote. I don’t know. I don’t think you can know. Being wrong is not the same thing as lying. I honestly like ABBA.

    On the other hand, I think your best argument is that her essay is intellectually dishonest. As you write, Justice Scalia did not say that it is moral to execute the actually innocent. At least in the quoted language, he merely described the state of the jurisprudence — and it would be hard for someone to read into those words what Ms. Parton did. Similarly, while the NC case is extraordinarily troubling, the fact that Justice Scalia referred to its facts many years ago doesn’t mean that he is in any way immoral or depraved. As of the time Justice Scalia wrote those words, the two men had confessed to the crime and Justice Scalia could not have known that they would later be exonerated.

    I think you want your readers to offer their frank comments, and so I’ve done so.


  21. You asked me about your pending death penalty case, and I want to respond. I have pointed out to you before that this Holmesian “I just apply the law” belief system is dangerous, and, yes, potentially morally depraved. And I say that because it completely ignores the political dimensions of law and exalts process over everything, including the enormous amount of discretion which judges already possess. Forgive the potentially odious comparison, but you recently wrote about a judge in Nazi Germany who would not go along. Did he violate his oath of office? Or were the other judges who placed their imprimatur on the crimes of the regime just following the law?

    At some point (especially in a capital case), a judge must decide whether he is an agent of the state or an agent for justice. I think that society has far less to fear from a judge who rejects unjust principles of law or outcomes than from one who follows them no matter what. Every authoritarian society wants and loves to point out that its policies are backed by law, but it is not enough.

    I happen to think that Blackmun was right, and that Scalia is wrong, that our country is in love with death far too much and that the death penalty is a barbaric relic. But that’s just my politics, and it’s probably not yours. I was impressed when Judge Jack Weinstein refused to take any more drug cases because he could no longer destroy people’s lives, and I was impressed when Judge Rakoff refused to sign off on cozy deals between banks and the SEC because they violated the public interest. They had a point to make, and they took advantage of their position in public life to make it. Should they have been impeached for refusing to “follow the law”? And, by the way, one of the many reasons that I think Scalia is intellectually dishonest is Bush v Gore, a lawless and indefensible decision is there ever was one.

    Moral courage is scarce, far more scarce than physical courage. If you think the defendant should fry, then do it, and assuage your conscience by saying “the law made me do it.” Otherwise figure out a way to let him live. You have the choice, I don’t. I don’t envy you, but with power comes responsibility.

    By the way, I consider it an honor and a privilege to be able to confront and engage you this way. I tell my clients that one reason I love being a lawyer is that I can walk into a courthouse at anytime, and within an hour be in front of someone who has the power to give me what I want. Unless I’m filthy rich, my Senator won’t see me, my Governor won’t see me, but a judge will see me.

    My very best wishes for your continued health and recovery, by the way.


  22. David,

    Legitimate opinions about whether the state should execute innocents is one thing, calling a Justice depraved is very different. It is that difference that makes me “bitchy.”

    Anyway, welcome to the chorus line. You have no trouble with the high kick. Good for you.

    All the best.


  23. Dear Richard,

    Thank you very much for elaborating. It helped me, and I appreciate it.

    By the way, I will never use the “law made me do it” excuse, and that is not the way I understood Holmes. If I allow someone to be put to death, I will do so because of my free will. I will provide a reason, but I will not seek an excuse. The death of the prisoner is my responsibility. That’s what federal trial judges are for–pulling triggers.

    All the best.


  24. You aren’t immoral or depraved for engaging the machinery of death, but you might be if you do so glibly or gleefully.

    I’ve read enough of your blog to think that’s impossible.

  25. As a longtime lurker and fan of this blog, it saddens me to say that this is the first (and I hope only) time the judge’s emotional response to an issue has clearly overwhelmed his ability to think and write critically and engagingly.

    The comments expressed by others herein are mostly representative of my observations. From another source, I would assume an essay such as this one was merely “trollbait” designed to promote clickthroughs instead of critical thought [indeed, that is also my assessment of much of what is published at Salon, including the material that prompted the judge’s post]. I have empathy for a federal judge who has participated in our system of capital punishment for many years while hearing (sometimes silly or incomprehensible) criticism from its foes all the while. However, the strength of this blog has always seemed to me to be the judge’s ability and willingness to take opposing views at face value and address them respectfully and seriously, regardless of their source or alignment with his own opinion or analysis. I’m not sure why the judge abandoned that approach this time. I wish he hadn’t.

    Ad hominem attacks seldom persuade anyone of anything — at least not anything the author intended. The judge’s uncharacteristic smear of the author’s biography eventually gives way to relative comparisons of “qualifications,” amounting to little more than another way to dismiss an argument by virtue of its source, not its merits.

    Long after the bulk of the essay has passed, it offers an important statement: “The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.” This is the first glimmer of intellectual honesty and thoughtfulness in the post, and would certainly merit further exploration and discussion. Unfortunately, any hope of a discussion of issues or principles is quickly extinguished by a quick retreat to more snide comments about the author.

    I know many who disagree with my opinions about capital punishment as it is currently practiced in the United States — both personally and by their published thoughts on the topic. I enjoy sharing thoughts on both the morality and legality of capital punishment with others as a way to test and refine my thoughts. What I have learned from those discussions is this: the subject of the proper exercise of power by a democratic government is a serious and hard thing to discuss. Likewise the subject of the application of that power to the life of a human being — even more so when state power is used to end that life. Whatever the source, and whatever the tone or viewpoint expressed by others, the subjects themselves demand careful thought and clear, respectful communication by those who are capable of it.

    Judge, this blog is a record (though not the only evidence) of your ability to think critically and communicate forcefully but respectfully about hard topics. I encourage you to review your post above, apply the same self examination you have shown in the past, and revise and extend your comments in a way more befitting of your station, your intellect, and your humanity.

    All the best,


  26. Interesting to see Holmes quote on justice, Holmes is a long time bad guy in traditional Catholic legal scholarship, yet Scalia the professional Catholic supports a positivism that would make H.L.A. Hart blush. Given his recent interview, maybe the devil made him do it. As for abortion’ the easy answer is that we do not have a second generation constitution. Catholic argument is borrowed from first German Constitutional Court opinion, not a surprise given the sources of Catholic political theology, but even GCC has modified its position. Be a reach in our legal tradition to describe not outlawing abortion as state action or even as a cause.

  27. DBS,

    I am truly sorry I disappointed you.

    Tomorrow, I will post about the following: “The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.” For among other reasons, I will post on that idea because you state that the point “would certainly merit further exploration and discussion.”

    Actually, the post I am contemplating may turn out be more of a question seeking the considered views of practitioners, other judges, academics and thoughtful lay people than it will be an expression of my, as of yet, only partially formed views. And, I do not intend to discuss Digby.

    Because I have pending death penalty cases, my post tomorrow will be carefully phrased to avoid commenting on legal matters I may be required to decide. For example, I do not intend to discuss whether “actual innocence” is or should be something more than a bridge to overcome procedural default.

    I sincerely appreciate your recommendation. Thank you.

    All the best.


  28. I agree with others that this is by far the worst post I’ve ever seen on this blog, for the reasons others have articulated. Although I’m not the greatest fan of “democracy,” what makes this blog great, and even “democratic,” and something other judges should emulate, is the fantasy that through the judge’s engagement with both his fans and his critics he might actually learn something. But you can’t learn much if your head is befuddled by the kinds of over-the-top arguments from authority expressed in this post.

  29. Judge:
    Ms. Parton’s article is a superficial appeal to emotion pitched to an audience likely to be receptive to same about a subject that is, if nothing else, highly complicated and contentious. IMHO, your response is in keeping with what I have come to appreciate about this blog in that your entries and commentary are provocative and unapologetic even if they do sometimes “step over the line.” I hope that you continue in this vein as long as the dignity of your office is not implicated. As to Ms. Parton’s comments, I have to believe that Justice Scalia (no less than Justice Blackmun and every other state and federal judge involved in this issue) very likely anguishes over the thought that judicial action may result in the imposition of the ultimate sanction. But Ms. Parton’s suggest to the contrary is an intellectual assault consistent with the phenomenon of treating the judiciary in the same way that we treat the other two branches of the government. Such a thing dictates that judges, and the courts on which they serve, not interpret laws or constitutional provisions. Instead, both must now become instruments of policy or suffer the consequences to the contrary. Those judges who are reluctant to do so must be pilloried in public thereby rendering them–and others like them–less likely to hold the “wrong” positions in the future. After all, such a thing is infinitely easier than getting a constitutional amendment passed which settles this issue by banning the imposition of the death penalty once and for all.

  30. Judge, you are very kind to suggest that my interests contribute to your writing choices — a fine example of considering an argument without regard to its source!

    I look forward to your post both because it sounds as though it will reflect what I enjoy about your writing, and because I was quite compelled by your statement acknowledging that a democratic capital punishment system (or at least the system we currently have) may include a tolerance for condemnation of the innocent from time to time. I’ll admit that I hadn’t previously contemplated the idea that ethical principles might allow for execution of the innocent, though your statement has already prompted me to rethink this poorly-considered assumption.

    Good luck with the post, and navigating the thicket of offering insightful commentary while remembering your ethical duties to your case load.

  31. Judge,

    I want to comment on one aspect, really one word, that stuck out at me. You called her remarks “defamatory.” As you well know, what she said is not defamatory under the law. Calling someone “immoral” or “depraved” is a quintessential statement of pure opinion. Even if Justice Scalia were not a public figure, were he to pursue an action for defamation, it would be entirely meritless.

    I do not believe you used that word in its legal context there, nor do I think you believed when writing this that this woman should be subject to any legal sanction. But words matter. You could have described her rant in any number of ways. You used an adjective which is almost never used outside of a its context as a tort.

    Given your position and the context of this piece, that word mattered. By using that word, you hand her a weapon against you. It changes your argument from one about why we should ignore and hold in contempt this particular Salon columnist, and brings in the power of the state. It puts her against a Goliath who has no business in this fight. And your argument is weakened for it.

  32. Judge,
    I’ll speak in parables. You’re old enough to remember Conrad Dobler, the lineman, yes?. Well I happened to have read his memoirs some years ago, and while I found them to be for the most part undistinguished, there were some words of wisdom. One, which I will cherish, is \when he said that the opposing player his team feared the most was Dick Butkus of the Chicago Bears. He explained that Butkus hit linemen hard, but not harder than the average lNFL linebacker. What distinguished Butkus from the rest and that made him so fearsome was that no one, no one hit the ball carrier harder.

    So take it from Conrad Dobler-know the difference between the blocker and the ball carrier. it’s not what you do to the blocker. It’s what you do to the ball carrier.

    If you don’t agree, don’t argue with me. Argue with Conrad Dobler.

  33. Peter H.,

    I remember the point when I was searching for an adjective. I elected “defamatory” and was not satisfied with it when I stuck in it the sentence, but I got distracted or something. In short, I agree with you that it was a poor choice. Thank you for the helpful criticism.

    All the best.


  34. AYY,

    A wonderful parable that is precisely on point. Besides, I would never argue with Conrad Dobler, the “dirtiest man in football.” Man, what a player!

    All the best.


  35. Digby has just as much right as you to judge Justice Scalia. You can disagree with her opinions and conclusions, but you take that a step further by denying her the right to even offer her opinion on the subject. Sad.

  36. John,

    I will try to do better. I don’t write to please, but I also don’t write to disappoint. Thanks for your candor. I am chastened by it.

    All the best.


  37. Pingback: If There Was No Other Way, Part 1 | Simple Justice

  38. I am sorry. If approving the death penalty for a person you know is innocent is your idea of justice, then we are morally depraved. IMHO, actual innocence should be held above all. Any system that allows for the knowing execution (or conviction) of the innocent is wrong on its face.

    Justice Scalia’s position, as you put it, seems to be: I apply the law as the people gave me, not as I would want it. I believe Pontius Pilate is reported to have said something along those lines. (It is true that, in the case of actual innocence, there is a safety valve, the clemency power).

    Justice Scalia position allows him to actually decide whether actual innocence matters. That is much more than your position allows. You must abide by precedent. Justice Scalia (and his cohorts) make precedent. If they said the “penumbra of justice” in the Constitution prevented executing an innocent man (sort of like the penumbra of privacy), their pronouncement would be binding on you. In other words, if Digby lacks the background to criticize Justice Scalia on this issue, then you lack the background to support him. If Justice Scalia (and four other justices) wanted to interpret the constitution so that it precludes executing innocents, he would. That he does not may well mean that he is immoral and depraved.

    As for Digby’s qualifications… We all start somewhere. Not to say the comparison is valid, but I wonder what qualification Einstein had while working at the patent office. Was Lincoln objectively more qualified than Douglas in 1860? Did Obama’s government service even come close to McCain’s? And do we really have to listen to Sarah Palin?

    Certainly, one can argue that the great philosopher’s opinions are entitled to weight. But that is not because they are great philosophers. It is because their opinons constitute great philosophy.

    In sum, attacking Digby because she does not have a vaunted educational and professional background smacks of an ad hominem attack.

  39. Anon.,

    As my post made clear, Digby, like anyone else, is “qualified” to express her opinions on the legal positions or opinions of the Justices including Justice Scalia. I don’t think Digby, or you or I are qualified to call Justice Scalia “depraved.” Justice Breyer authored an opinion in a case I decided at the district court level declaring Nebraska’s ban on partial birth-abortion to be unconstitutional, and the Justice and four of his colleagues affirmed my decision. There are many people who believe that abortion, and particularly partial-birth abortion, is immoral and the law should not allow such procedures. Those folks are entitled to their opinions but they certainly are not qualified to call Justice Breyer “depraved.” I hope you see the point I am trying to make, but if not I suppose that is my failing and not yours.

    All the best.


  40. I still don’t totally get your position here. Why shouldn’t those people call you, me, and Justice Breyer depraved? If I had a firm belief that abortion was morally equivalent to murder, I certainly would think its constitutionalization was heinous and indefensible, and that support for the status quo was evidence of moral bankruptcy or, indeed, even depravity. Apart from the fact that it won’t win friends and influence people, what is the problem with my saying so?

  41. Judge Kopf,

    You make several thoughtful points when you meet Digby’s argument on its merits, but there is one remark I can’t let go unaddressed.

    With unmistakable mockery, you call Digby a “delicate snowflake” for finding the “imperfect world jarring.” There are numerous figures — Martin Luther King Jr., Frederick Douglass and Thomas Jefferson among them — who had the same condition. If finding an imperfect world jarring is the only prerequisite, I guess those three — as well as many others — were delicate snowflakes. Most prefer to call them heroes.

    (As a point of clarification, I’m not comparing Digby to the figures above; I’m merely pointing out that outrage over injustice, whether aimed at the wrong target or not, strikes me as a virtue rather than a vice.)

  42. Guy Incognito,

    Upon reflection, the delicate “snowflake” comment was both unnecessary and unjustifiably nasty. All the best.


  43. Griff,

    There are really two reasons with saying so: (1) Because words matter and can inflict pain, and because the quality of our national discourse now scrapes the bottom, demonizing someone you disagree is both wrong and counterproductive; and (2) very few of us (most especially Digby and me) have acquired the moral standing to label someone like Scalia “depraved.” I appreciate that these are normative statements, but they are made in response to a normative statement that was entirely over the top.

    All the best.


  44. “We” . . . “as a society” had also chosen separate but equal. Was Brown v. Board of Education wrongly decided?

    I prefer a judge dedicated to justice, however slippery that concept may be, to one dedicated to “simply applying the law” like some sort of scrivener. The law is just as slippery a concept as justice, but it refuses to admit its true and uncertain nature, clothing itself instead in the garb of the supposed immutability of language. Judges are judges; they should judge. They are not applicators.

  45. Ms. Parton need not be a philosopher, nun, minister, journalist, lawyer, or judge to criticize a judge’s conception of due process or anything else. She needs one qualification and one qualification only: to be an American citizen. Judges are public servants. Even theatre majors get to question them.

    Did she go too far in calling the Justice immoral and depraved? I think so. But we’ve been hearing that language for years from those on the American right, including Scalia himself. I personally have spent most of my life being called immoral, depraved, un-American, anti-American, perverted, sick, filthy, sinful, hateful, hell-bound, etc.—and I’m a librarian, not Caligula. It gets old. This doesn’t excuse what she said but it puts it in perspective.

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