June July 2016
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The Advocate

Justice Scalia's Death Exposes Fractures in Legal, Political Circles

A photo of Supreme Court Justice Antonin Scalia

President Obama won't be attending the funeral of late Supreme Court Justice Antonin Scalia, the White House confirmed Wednesday, according to NBC News.

Conservative outlets and writers were quick to call the president's decision "shameful," though White House Press Secretary Josh Earnest defended Obama's absence from the Saturday service by noting that the president "will pay his respects at the Supreme Court on Friday, and he'll be joined by the first lady when he does that." NBC News also notes that Vice President Joe Biden will be at the funeral, which will take place at the Basilica of the National Shrine of the Immaculate Conception. 

Legal website Above the Law contends that a president skipping the funeral of a Supreme Court justice is reasonably common practice, from a purely historical perspective. But the arguably predictable outrage does illuminate two diametrically opposed camps that are responding to the justice's sudden death in vastly different ways. 

Scalia spent decades as the high court's most outspoken conservative stalwart, authoring numerous opinions and dissents that unapologetically devalued LGBT people, women, people of color, and low-income individuals who rely on social safety net programs. He was so fond of using hyperbolic (and sometimes made-up) language in his writing for the court that The Advocate documented "Scalia's Greatest Fits," tracking the justice's antigay rants throughout his years on the bench.   

(RELATED: Dear Straight People, We're Entitled to Our Feelings on Scalia

The ideological chasm regarding Scalia's virtues or lack thereof is best illustrated by a controversy that is still roiling Georgetown University Law Center, where the late justice received his undergraduate degree. 

When news broke of Scalia's unexpected death while vacationing at a ranch in Texas on Saturday, the university, based in Washington, D.C., issued a press release mourning his passing. In that statement, the law center's dean, William M. Treanor, praised Scalia as "a giant in the history of law, a brilliant jurist whose opinions and scholarship profoundly transformed the law." The dean closed his statement by proclaiming that "we will all miss him."

That laudatory message struck a sour chord with two of the law professors at the prestigious university, who drafted a response that was eventually circulated to the entire student body of the law school.

"Our norms of civility preclude criticizing public figures immediately after their death," professor Mike Seidman wrote in an email originally sent to law school faculty and subsequently obtained by The Advocate. "For now, then, all I’ll say is that I disagree with these sentiments and that expressions attributed to the 'Georgetown Community' in the press release issued [Saturday] evening do not reflect the views of the entire community."

On Tuesday, Professor Gary Peller circulated Seidman's comments in an email to the student body, adding his own conclusion that Scalia "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." 

Peller went on to agree with Seidman's rejection of the idea that the entire "Georgetown community" was mourning Scalia's death. The law school's community, such that it exists, "teaches critique, not deference, and empowerment, not obsequiousness," Peller wrote. 

By Wednesday, Dean Treanor had issued another statement via email, stressing that he was "personally saddened by Justice Scalia's death." He went on to fondly recount how the late justice stayed much longer than expected to engage with first-year students when he visited the law center to give a speech in November.  

Treanor addressed the controversy stemming from his initial statement, noting that "some faculty have disagreed" with its sentiment. But "I am writing now to reaffirm my belief that this a time for us to mourn," Treanor said in the email obtained by The Advocate. "This moment is a moment of grief. It is a time of loss and a time when many in our community are in pain. It is a time for mourning."

Finally, late Wednesday night, another pair of law school professors issued an open letter to "the Georgetown Law Community" in response to Seidman and Peller's message, arguing that the professors' email was "in violation of stated policies governing such emails." That open letter detailed the entire exchange — including exchanges following Scalia's death that occurred on the private faculty email server. 

The letter, signed by self-proclaimed "right-of-center" Georgetown Law professors Nick Rosenkranz and Randy Barnett, takes particularly pointed aim at Peller's decision to email his reply to the dean's message to the entire student body ("some 2000 students," according to the letter):

"For one’s colleagues to write, within hours of the death of someone one knows, likes, and admires, that he was a 'defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic,' is startlingly callous and insulting, not only to his memory but to those of us who admired him. To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death — that, in effect, they are glad he is dead — is simply cruel beyond words. But, though the insult and cruelty of our colleagues was grievous, at least only two of us had to bear it."  

Pointing to the perceived hurt Peller's message caused to "conservative or libertarian" students at Georgetown Law, Rosenkranz and Barnett's letter continued: 

"These students received an email yesterday, from a Georgetown Law professor, just three days after the death of Justice Scalia, which said, in effect, your hero was a stupid bigot and we are not sad that he is dead.

Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two year-old [first year law students], less than six months into their legal education."

The professors closed their open letter with a message of solidarity to students who were upset by the messages disparaging Scalia. They used dire terms to do so: 

"We share your pain. We share your anger. We stand with you. You are not alone. Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life.

"But make no mistake: Civil discourse at Georgetown has suffered a grievous blow," they concluded. "It is a time for mourning indeed."

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