Any criminal defense lawyer who missed Antonin Scalia on 60 Minutes last night is nuts.  Rarely does one get to see a fellow charm the pants off of Leslie Stahl to begin with, and a Supreme Court Justice at that.  How could you pass up this opportunity?

Orin has already linked the interview for us:

“60 Minutes” Interviews Justice Scalia: Part 1 is here, and Part 2 is here. I thought Part 2 was particularly engaging and worth watching.

No doubt there will plenty of descriptions and commentaries around today about it.  Indeed, plenty of blawgers were busily typing away about it last night so that this morning it was already all over the blawgosphere.  But that’s not going to stop me from having my say as well.

There was something about Justice Scalia’s attitude in the face of criticism of his originalist philosophy that reminded me of Rumsfeld and Karl Rove.  If he was unpleasant, I would call is smugness or arrogance.  But he wasn’t unpleasant.  He was incredibly normal and occasionally charming and funny. 

There was a protective coating that surrounded Justice Scalia that gave him the internal assurance that he is right and anyone who disagrees with him is wrong.  It’s not a matter of discussion.  He is not to be persuaded otherwise.  He is the persuader.  It is his job to convince others that they are wrong.  He need only listen to the extent necessary to point out the error of others.  He will not be moved.  He is right. 

Scalia admitted openly that he is a “law and order” guy.  That’s quite an admission for a Supreme.  He argues that despite his being a law and order guy, his job is to decide what the Constitution says, and that it has no impact on his decisions.  This is the sort of self-serving reasoning that immunizes overt bias, just because he says so.  It seemed beneath his intellect to assert that he is openly biased but is so wonderfully capable that he always rises above it.

Of course, Justice Scalia has authored from of the most shockingly important defense decisions since the Warren Court, based upon his originalist philosophy,  Crawford for example.  But then his reaction to Stahl’s suggestion that Bush v. Gore was a political decision was, well, silly.  His response was “it wasn’t” and “get over it.”  Well, that’s convincing.

Most revealing was Scalia’s argument that torture isn’t prohibited by the 8th Amendment because “it isn’t punishment.”  Torture, for the purpose of obtaining information, is not punishment, the specific word used in the Constitution, thus meaning that the Constitution does not speak to torture at all and therefore doesn’t prohibit it.  To say his understanding of the word “punishment” is a tad narrow is to insult the literal understanding of third graders.  They know punishment.  And it’s torture.

He claims to abhor torture (what that means), but consistent with his statements of philosophy throughout the interview, that doesn’t mean that the Constitution addresses it and that everything we hate is somehow prohibited by the Constitution.  That, Scalia says, is why we have laws.

I can’t help but wonder if our founding fathers would have done things a little differently had they anticipated the judicial philosophical of Justice Scalia.  While no originalist can tell us what every person involved in the creation, revision, execution and ratification of the Constitution had inside their heads as they did so, I can imagine the argument that might have happened in 1887 1787.

But Madison, we need to include something that says that the Constitution should be interpreted in light of future changes in society, from technology to society’s vision of justice, or somebody may think that we have somehow anticipated everything that will ever happen from today until the end of time, and covered it based upon what we know now.

You have got to be kidding, Jefferson.  Who could possibly be that stupid?

Justice Scalia says he gets tired of repeating himself.  I understand.  I feel the same way.

For those who missed the interview, enjoy.