There were many silly things said in our recent election for state supreme court. One was Justice Butler's claim to be a textualist in the mode of Antonin Scalia. Trust me, I do this stuff for a living. The idea that Louis Butler is anything like Nino Scalia is a laugh line.
Blogging lawyer Illusory Tenant seems to think that he has proven it to be so because, he believes, Scalia may take a similar approach to the scope of the Confrontation Clause in a case currently pending before the Supreme Court (Giles) as Butler took in a similar case decided by the Wisconsin Supreme Court (Mark Jensen). The idea is that the only exceptions to the right to confront a witness ought to be those that were recognized at the time of its adoption. Butler came to the conclusion - and so may Scalia - that a defendant's confrontation right is violated by the admission of hearsay from a witness who he is alleged to have killed unless there is proof that he killed the witness in order to silence her testimony.
We can argue about the desirability of such a distinction. It seems like an odd place to draw the line once we accept (as everyone seems to) that the confrontation right is not absolute. On the other hand, it places some boundaries on an exception that threatens to get rather large. Scalia's point - and one employed by Butler - is that desirability is not the question. Rather, we have to get at the actual meaning of the constitutional language without regard to what we think it ought to say.
The problem with drawing some larger conclusion from the Giles/Jensen example is that while this is - with imperfections - a consistent interpretive methodology for Scalia, it really isn't for Butler. Cases like DuBose and Knapp were not rooted in the original meaning of the constitutional language at issue. Jerrell C.J. certainly constituted an aggressive and extraordinary spin on the Court's supervisory power to compel a result that could not be rooted in the Constitution or statutes. It is very hard for a textualist to reach a decision like Dairyland Greyhound Park in which the court held that a constitutionalists amendment outlawing casino gaming actually permits a Governor to agree to its unlimited expansion on Indian reservations or to read our constitution's right to bear arms in the constricted manner that Justice Butler and a majority of the Court have adopted in order to preserve the state's broad prohibition on concealed carry.
In point of fact, those who supported Justice Butler and who, like IT, considered him to be one of the smartest judges in the country were generally not textualists and favored his reelection because they thought he was not either.
I have said nice things about Tom in the past and I mean them. But the point I made above is one which I think that most court watchers would agree with (although some would deny that what Scalia wants to do is possible). Patrick McIlheran understood that (he's an excellent journalist and did some great background interviews) and, in writing a column headed "No one here but us Scalias" turned the best phrase in a dreary campaign. To write as, Tom does that McIlheran's views are "absurdist fluff," "exceptionally silly, "manifestly supercilious" and "ill-informed scribblings" is not only adjectivally overdosed but thoroughly incorrect.
On the other hand, if what we want is more Scalias, I assume that Tom is looking for someone to run against Chief Justice Abrahamson.