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Justice Scalia and the Tequila Question:
Many VC readers have read elsewhere about Justice Scalia's "tequila" remark at oral argument on Tuesday. I agree with David Lat that the concern is misplaced.

  First, some background. The petitioner had been convicted of possessing cocaine, served his sentence, and was then deported to Mexico. At oral argument, the question was whether his petition was moot because he was living in Mexico and was trying to challenge the criminal sentence aleady served in the United States. Counsel for the petitioner argued that the appeal wasn't moot because technically petitioner was still governed by the terms of post-sentence supervised release. Supervised release is like probation after a prison term; it's essentially a contract, in which a defendant agrees that he will abide by terms of release in exchange for being let out of prison earlier. If he violates a term of release, he can be sent back to prison (at least theoretically). The petitioner argued that a term of release was that he couldn't have any alcohol, and it was at least possible that the federal court in the U.S. could find out that he was having alcohol in Mexico and seek to have him returned to prison in the U.S. Here's the excerpt from the transcript, with emphasis mine:
MR. CROOKS: Mr. Chief Justice and may it please the court. I would first like to address the government's contention that Mr. Toledo-Flores' appeal is moot. His appeal of his sentence is not moot primarily because he is still subject to the sentence that is the subject of that appeal. Even though Mr. Toledo-Flores was released from prison on April 21st of this year, and deported to Mexico, he is still subject to the supervised release portion of his sentence because supervised release is not automatically extinguished by deportation.
CHIEF JUSTICE ROBERTS: But there is no supervised release of people outside the United States.
MR. CROOKS: There is no supervision of people outside the United States, Mr. Chief Justice, but he is still subject to the jurisdiction of the District Court and still subject to theconditions of supervised release that are not dependent upon supervision.
CHIEF JUSTICE ROBERTS: Like what?
MR. CROOKS: For example, he should not use alcohol, he should not associate with persons.
CHIEF JUSTICE ROBERTS: What's going to happen to him if he does that?
MR. CROOKS: If the District Court learns about that he could be violated and he could face up to a year more in prison.
CHIEF JUSTICE ROBERTS: Has anything like that ever happened before to people subject to supervised release who have then beem deported? It would be the first time if the District Court did that, right?
MR. CROOKS: There have been instances in the case law where people on supervised release have been extradited back from foreign countries based on violations of their supervised release. But the point is under the statutory scheme Mr. Toledo-Flores is still subject to the District Court's jurisdiction.
  A few seconds later, Justice Scalia interjects to to say that such a remote possibility wasn't sufficient in his view to keep the petition from being moot. Scalia's point was that no one actually expected the terms of supervised release to be followed after a person is deported. When a person is deported where there is no probation officer, the terms of supervised release are understood to be just form with no substance. Here is what Scalia said:
JUSTICE SCALIA: We have a case involving standing which says that — you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going — is going to apply having been deported from the country for criminal offenses, he is going to apply to come back — and look, these are ingenious exercises in the conceivable. This is just not the real world.
  Justice Scalia certainly isn't one to pull punches here: as usual at argument, he is telling counsel exactly what he thinks. But is Scalia's tequila line really so objectionable? The petitioner's own lawyer was arguing that petitioner might drink alcohol in Mexico and be hauled back to serve more time on cocaine charges in the United States; Justice Scalia was saying that the latter seemed completely unrealistic. It's true that Justice Scalia did name a particular type of alcohol, rather than just refer generically to "alcohol." But the alcohol he mentioned is often celebrated as Mexico's National Drink, so it's not clear to me why picking Mexico's National Drink as an example of the alcohol his own lawyer suggested he might drink in Mexico is necessarily offensive. Maybe I'm missing something, but I'm not aware of any stereotype by which residents of Mexico who chose to drink alcohol are considered worse or less desirable for picking the National Drink as compared to beer or wine or some other hard alcohol. I hope I'm not just being deaf to a known stereotype, and if I am I hope you'll point that out in the comment thread, but I don't see why this was so offensive when understood in context.
Sk (mail):
Its not offensive. Dana Stevens (?) at Slate wrote about it as if it was because 1) he/she doesn't like Scalia, and 2) deeming his words offensive justifies that dislike. Its confirmation bias; if you don't like Scalia because he's a bigot, you will screen his words looking for (or in this case, inventing) outrage. Its no more offensive than joking about drinking wine in Paris, Ale in London, vodka in Moscow, or jaegermeister in Munich.

Sk
10.5.2006 1:41am
John Steele (mail):
It seems that the idea of drinking alcohol was first raised by counsel, and that the example Justice Scalia used was appropriate not offensive. The examples SK came up with are spot on, I think. If petitioner were deported to Japan I wouldn't consider it offensive if Scalia said, "if your client drinks sake . . . ."
10.5.2006 1:47am
Harry Eagar (mail):
Let me get this straight. The guy's a coke monster and we're expected to believe he would draw the line at drinking tequila?

It's like a rerun of Arlo Guthrie's interview with the draft officer in 'Alice's Restaurant.' A rerun on bad drugs
10.5.2006 1:52am
Jacob (mail):
No comparison is going to be perfect, because no ethnic heritage has the same history of stereotyping in our country as any other. But I think a good starting off point to determine whether you're being deaf to a known stereotype is to replace "Mexico" and "tequila" with, say, Ireland and whisky. Or Russia and vodka. Or Japan and sake. Or New Zealand and crappy, overrated wine.

Or maybe it's just that the tequila part is so often grouped with less-content-neutral stereotypes of Mexico. Certain races were often depicted with exaggerated physical characteristics in the same propaganda that was used to undermine their cause. The physical characteristic doesn't say anything bad about the race alone, and might even be grounded on a general trend in the race's physical features, but people would still get suspicious if the characteristic were revived by anyone nowadays.

I doubt Scalia really meant anything by his remark, and I'm far from surprised he didn't think through what he was saying for how it could be interpreted. Definitely not a comment most would make in good company, but that's pretty far down the priority list for a Supreme Court Justice.
10.5.2006 1:54am
Anonymous1L:
Not offensive. I think the Slate author is really reaching here. But the more interesting question is why exactly we think so--compared to, say, referring to a south Asian as a "macaca."

In the latter case, the speaker is using a nonsense phrase to refer to a person of a different ethnicity, apparently on the grounds that people of that ethnicity have odd names, and so "macaca" is a plausible example of a name they would use. This shows a lack of the most basic familiarity with that culture, attempts a joke to distract attention from his lack of knowledge on the matter.

But in referring to someone in Mexico as passing the time drinking tequila. Mexico is known for tequila. Some people in Mexico--native Mexicans too--do, in some degree, drink tequila. What is wrong with suggesting that as an activity a Mexican citizen may engage in on a sojourn to their home country?

If Scalia had said "Nobody thinks our client is, you know, abstaining from a buttery Montepulciano over in Italy," would anyone have raised an eyebrow? Or maple syrup in Canada?

I think you could validly criticize Scalia for not being well-versed in the rich cultural history of Mexico, but to be fair, you could say the same of most of us. But does this indicate some shadowy racism? Hardly.
10.5.2006 1:55am
M (mail):
Anonymous1L,
"macaca" isn't a nonsense word meant to sound like those funny names that people from India have. It's a slur meaning "monkey" that's common in French north africa (and other places.) Since Allen's mother was from French north Africa it was fairly implausible he didn't know this.
10.5.2006 2:02am
Some Guy.:
Slate's overboard on this one. Scalia is completely blameless on this issue. The reporter just had to get something on him in the first week. Something legit is sure to come up had she been in the mood to wait.
10.5.2006 2:02am
mls (mail):
I'm not usually fond of substitute-another-race arguments, but I think it might be helpful in this context -- at least as helpful as the substitute-another-liquor arguments! Suppose the case had involved a black man, and smuggling of fruits and vegetables. If a judge had suddenly substituted "watermelon" for the phrase "fruits and vegetables," would you consider that it might be unconscious/subconscious racism or racial stereotyping?

Of course, the analogy isn't perfect, especially in context. The stereotype for hispanics is about drinking too much generally, not necessarily drinking too much tequila. So substituting "tequila" for the bland word "alcohol" seem to be merely colorful language. But I do wonder if the case somehow involved a caucasian person in Mexico, would he have replaced "alcohol" with "tequila"? Orin's "National Drink of Mexico" reference seems to suggest he would have. But I think it is plausible that it was the conjunction of MexicAN and alcohol that raised tequila in Scalia's brain, not the conjunction of MexicO and alcohol. If so, then the comment was based on racial stereotyping -- likely unconscious, but racial stereotyping nonetheless. Of course, we'll never know -- any more than we will know that there was no racial stereotyping going on.
10.5.2006 2:23am
cirby (mail):
Almost all of the Bad Drinking Stories I hear from friends who vacation in Mexico include the word "tequila" at least once.

As do about half of the Really Funny Drinking Stories I hear from friends who never left the US...
10.5.2006 2:26am
Lev:

But I do wonder if the case somehow involved a caucasian person in Mexico, would he have replaced "alcohol" with "tequila"? Orin's "National Drink of Mexico" reference seems


How do you know it was not a caucasian person? There are lots of Mexicans who are caucasian persons, a number of them are criminals, see e.g. some of the former presidents of mexico.
10.5.2006 2:30am
HLSbertarian (mail):
But I think it is plausible that it was the conjunction of MexicAN and alcohol that raised tequila in Scalia's brain, not the conjunction of MexicO and alcohol. If so, then the comment was based on racial stereotyping -- likely unconscious, but racial stereotyping nonetheless.


I think the likelier interpretation from context was that Scalia had "MexiCO" on the brain. Even if the didn't, the stereotype, would be cultural, not racial - the man in question was actually FROM Mexico, where people drink a lot of tequila.
10.5.2006 2:32am
C W:
I just hope that this little incident doesn't make the CJ rethink opening up the transcripts immediately.
10.5.2006 2:32am
Stephen C. Carlson (www):
If anything, this fuss over Scalia's comments will delay even longer the Supreme Court's allowing the televising of oral arguments. There was already a concern that the media might distort what is going on in oral arguments, and this flap only reinforces that concern.
10.5.2006 2:36am
Kate1999 (mail):
I'm not sure about that, Stephen. Seems to me that reading the transcript is the key to seeing that this has been blown out of proportion. If there had been no transcipt, the headlines would probably say "Scalia Says All Mexicans Drunks."
10.5.2006 2:47am
Jacob (mail):
Wait a minute- the same gruff, rough and tumble, too-busy-ruling-on-law-to-worry-about-sensitivity Supreme Court needs protection from the media (by which we mean an online magazine and liberal bloggers) misinterpreting it? Of all the arguments for keeping the Court behind a curtain....
10.5.2006 2:55am
Brian Garst (www):
It's offensive to people who believe that to highlight anything in a person or group that is different is to be "racist". It's nonsense, of course. Nevertheless, it seems to get their panties in a bunch.
10.5.2006 2:58am
Anti-PC Observer (mail):
The line can be pretty arbitrary between offensive and inoffensive stereotypes. It may be that talk of Mexicans and tequila brings up grotesque caricatures in many minds (think a bunch of mustached amigos with oversized sumbreros sipping tequila while slumped over on their bar stools in some non-descript, crummy bar...). Similarly, comments about African-Americans and fried chicken are strictly off limits, which may be the closest comparison. These are largely exceptions as comments about East Asians eating with chopsticks, the Indian preference for spicy food or the French love of wine would get no notice at all. On the other hand, jokes about Koreans eating dogs are considered increasingly offensive.

I certainly don't defend these distinctions but am just pointing out that such is the status quo in political correctness.
10.5.2006 3:09am
A. Zarkov (mail):
"macaca" isn't a nonsense word meant to sound like those funny names that people from India have. It's a slur meaning "monkey"

Macaca mulatta or Rhesus Macaque does refer to the Rhesus monkey, but what does it mean to call someone a “monkey?” According to the on-line urban dictionary “monkey” has many slang meanings. Number 14 is: A racial slur directed towards a person of African-American ethnicity. But number 8 is: One who holds a job that requires little or no intelligence and could basically be done by any of the lesser primates. For example, “supermarket monkey.” Note the similarity to “gopher” which refers to “A low-ranking employee who is made to do the bidding of their superiors.” Now following a politician around and recording his speeches qualifies as a gopher-type or monkey job in my book. Moreover the person Allen called a “monkey” is of Indian decent, not African decent. Indians are no more descended from Africans than Europeans according to DNA analysis. Finally according to Posner Indians are classified as Caucasians under American law.
10.5.2006 3:34am
Erasmus (mail):
And what's lost in all this discussion is Scalia’s nonsensical argument that the case is moot because even though the defendant could be arrested for his conduct, because Scalia thinks an arrest is unlikely to happen, the case doesn’t present a live controversy such that a federal court should have jurisdiction to hear it. Clearly, that’s what the framers meant by “case or controversy.” Just make sure you don’t poll international opinion regarding whether the defendant is likely to be arrested again. You’d be subverting Democracy and the meaning of Our Grand Constitution.
10.5.2006 3:38am
Daryl Herbert (www):
Once again, Slate is counting on us being too lazy to look up the context.

Oops... I think if you strip the context from my remark, and deliberately misinterpret it, you could say it's racist because it resembles a well-known stereotype. As an act of penance, I will publicly flagellate myself and declare eternal fealty to Roe v. Wade.
10.5.2006 5:39am
Daryl Herbert (www):
Zarkov: what does it mean to call someone a “monkey?”

You could go up to some dark-skinned people, and find out*

In the meantime, I don't think George Allen wants people explaining that he had good reason to call a dark-skinned person a monkey. Just a crazy hunch of mine.

* by asking them politely what it means to them, not by calling them "monkeys" and gauging their responses
10.5.2006 6:06am
donaldk:
Slate and of course, CNN. Detestable; patronizing. I can't think of words sufficient to describe them.
10.5.2006 6:18am
Arbusto Spectrum (mail):
When in Rome, do as the Romans do; when in Mexico, drink Tequila.... It's a stretch to assert that this one is offensive.
10.5.2006 7:00am
llamasex (mail) (www):
I don't think most of you read the Slate article. Dahlia Lithwick isn't calling Scalia a racist, but is instead accusing him of not living up to the stature of a Supreme Court Justice. "The more interesting question is about Scalia's deliberate carelessness with language, his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others."
10.5.2006 7:47am
Mr. X (www):
What's offensive is that people are routinely sentenced to year-long (and longer) probationary periods where they are not allowed to drink, but nobody, not even a Justice of the Supreme Court, expects those provisions to be followed.
10.5.2006 9:07am
A. Zarkov (mail):
Daryl Herbert:

Many dark-skinned people have been conditioned to have a hair trigger about racial slurs. That’s what happening with the Scalia remark. Another example is the “niggardly” comment that got someone fired in Washington DC. Taking offense has become a growth industry, and I think many people are now catching on that it’s a form of manipulation.
10.5.2006 9:08am
JRL:
Tequliacaca!
10.5.2006 9:44am
JRL:
er, Tequilacaca!

/must have had one too many margaritas
10.5.2006 9:45am
AntonK (mail):
Of course it's not offensive, and of course it was not meant to be offensive.

If there's a "chill in the air" in this country now, it's because of the Left and their Thought Police. This "chill" is experienced by most of us, at least vicariously via others stories, on an almost daily basis.

How many of you have actually felt the weight of the Patriot Act on your back? How many have felt that the NSA is actually listening-in to your phone call to Grandma?

Pooey!
10.5.2006 10:01am
JPS3L (mail):
Was the tequila remark more or less offensive to Mexicans than the MSM’s nickname, “Scalito,” was for Justices Scalia and Alito (or other Italians)? While the question is not designed to assert and eye-for-an-eye argument, I think it does help to underscore the double standard often employed by the press and liberals generally.
10.5.2006 10:17am
markm (mail):
But I do wonder if the case somehow involved a caucasian person in Mexico, would he have replaced "alcohol" with "tequila"? Of course. The only white Americans that visit Mexico and don't drink tequila are teetotalers.

And by the way, many Mexicans would find the implication that they aren't caucasian offensive...
10.5.2006 10:24am
Huh:
Hahahaah. You can tell you're reading Slate because it smells of sulfur.

Seriously, guys, I love Lithwick &Slate, and even I don't agree that Scalia's remark is racist or even noteworthy (except for the fact that I'm unsure how being subject IN FACT to the jurisdiction of a court is an exercise in the merely conceivable...discharge him from supervised release, there's your mootness).

But to call Slate disgusting, well, that's a bit much. Your host-bloggers seem to like Slate quite a lot. That is, I see enough Slate on Volokh that I actually don't have to visit Slate all that much.
10.5.2006 10:25am
JohnO (mail):
When I lived in southern California and went to Mexico, I drank two things and two things only: Tequila (usually in the form of Margaritas) and Corona beer. Substituting tequila, Corona, or margarita for "alcohol" in order to make the rhetoric more colorful seems appropriate when discussing the consumption of alcohol in Mexico.
10.5.2006 10:26am
Frank J. (mail) (www):
Well, I am extremely offended and will definitely not vote for Scalia next year.
10.5.2006 10:45am
Fub:
Erasmus wrote:
And what's lost in all this discussion is Scalia’s nonsensical argument that the case is moot because even though the defendant could be arrested for his conduct, because Scalia thinks an arrest is unlikely to happen, the case doesn’t present a live controversy such that a federal court should have jurisdiction to hear it.
Exactly.

Scalia's underlying "reasoning" here is not substantially different from that used to rationalize jurisdiction in Raich: We want a particular outcome, so we'll assume whatever facts are necessary to justify that outcome.

If Raich's acts were interstate commerce, then there is no reason to believe Toledo-Flores wouldn't be arrested in Mexico for drinking tequila in violation of the statute.
10.5.2006 10:52am
abb3w:
I think most of the reaction (and lack thereof) is misplaced by both sides in this debate.

I'd say that Scalia could be justly accused of promulgating a stereotype. However, if Tequila really is the "official national beverage" of Mexico, I would posit it cannot be called the promulgation of an offensive cultural stereotype, since it is a self-chosen one. So, culturally, it would ought be no offense if said in any other context.

An infinitely greater concern is that such stereotypes (both in general and in this particular instance) constitute a form of prejudice in the most literal sense, which is therefore most profoundly objectionable coming from a Supreme Court Justice when speaking from the bench. It's not worthy of impeachment for the single instance, but I would consider neither a public reprimand from the Chief Justice issued from the Bench nor a motion of Censure from the House and/or Senate to be out of line for that aspect of it.

If a statistically significant pattern of such was made over a number of cases that correllated to his votes in them, then that would demonstrate he is unable separate his personal opinions from the matter of law at hand, and would indeed rise to just grounds for impeachment. However, while I suspect the conclusion to be true due to my anti-Scalia prejudices, the predicate has not been shown.

Oh, and markm: don't forget the reformed alcoholics, who always remember that one drink would be one too many for them.
10.5.2006 11:08am
chris s (mail):
Lithwick as usual is parsing Scalia's words hoping to find cause for offense. He's not Logic Superman, but you'd think so from the way she fretfully avoids ever arguing directly with Scalia's rulings, as opposed to moaning about his manner or manners.

also - it's depressing that this silly case made it all the way up to the S Ct - apparently entirely on the taxpayers' dime (presumably the def's PD was paid by the people of NM), and all on behalf of a non-citizen. what a waste of $$$.
10.5.2006 11:12am
Steve Henderson (mail):
A. Zarkov said:

Many dark-skinned people have been conditioned to have a hair trigger about racial slurs.


What does THIS mean?
10.5.2006 11:16am
Norman:
Absolutely not offensive and not careless. Scalia was simply putting the situation in a specific context, creating a hypothetical, which is a natural thing for lawyers to do.

This is p.c. sensitivity gone too far. Mexico to tequila, France to wine, Japan to saki, etc., are comparisons that the respective cultures are proud of. Is it now inappropriate to associate a country/culture with a flattering, yet distinguishing, mark of that country/culture?
10.5.2006 11:19am
M (mail):
It means that Zarkov is acting like a moron, as is pretty typical for him.
10.5.2006 11:26am
H. Tuttle:
It's a sign of how far we've come from the historic daily struggle for food, clothing and shelter that any of us are wasting time on this issue. Dahlia Lithwick's had her 15 minutes in my opinion, and her work is increasingly becoming a regurgitation of past tropes. There was absolutely NOTHING offensive in Scalia's statement. If he'd said the guy was drinking Draino, that would be a different story, perhaps.
10.5.2006 11:26am
Houston Lawyer:
Mexicans and Americans of Mexican descent aren't nearly as thin-skinned as the politically correct want them to be. The Houston Press, an alternative weekly, has a section called "Ask a Mexican", which is profane and funny. One of the parents on my son's soccer team, who appears to be of Mexican descent, has his ring tone set to Speedy Gonzales. My experience is that those of Mexican descent embrace their stereotypes and own them.

Spare me the indignation on someone else's behalf.
10.5.2006 11:29am
JB:
"Macaca" also has a synonym for "shit" in it. Without knowing that it's a type of money, I at first thought Allen was calling him something having to do with shit.

Also, it's a particular kind of monkey. You can talk about a tech monkey or a grocery monkey, but I've never heard of a tech macaca or a grocery rhesus.

On the other hand, Scalito is in the race-neutral tradition of portmanteau-ing two words together to hint that they're the same. Republicrats, say. One may argue whether Scalia and Alito are in fact very similar in their opinions, but not that "Scalito" is racist.
10.5.2006 11:31am
33yearprof (mail):
Not offensive. He could as easily have said "Corona" which tens of thousands of 100% red-blooded, native born Americans guzzle by the case.
10.5.2006 11:39am
Paul Johnson (mail):
One may argue whether Scalia and Alito are in fact very similar in their opinions, but not that "Scalito" is racist.

Italians are now a race? Who knew?
10.5.2006 11:44am
BSW (mail):
"Or New Zealand and crappy, overrated wine."

I happen to like their wine, thank you very much - particularly their Sav. Blancs.
10.5.2006 11:45am
Mitchell Freedman (mail) (www):
Count me in as one defending Scalia for the remark. This was oral argument and he was not being insensitive to the person the government was trying to exercise its control over--he was in fact highly symathetic to the plight of that person.

Scalia, has in the past, made insensitive remarks in judicial opinions as a Supreme Court justice: Like using a German word, kulturkampf (spelling?) as a lead in to an anti-homosexual position, which reminded me, at least, of the way Nazis used that word as a lead in to denounce Jews. Scalia also infamously labeled an argument of O'Connor as being "hysterical," in a context that properly led many to believe was denigrating to her sex.

I bring these up because I wish to be clear that I have been highly critical of Scalia in the past, but this one is an example of people piling on and is unfair.
10.5.2006 11:47am
MnZ (mail):
The people who are upset by Scalia's remarks might actually have the bigger problem with racism. Even though tequila once had the reputation as being a cheap liquor, that is no longer the case. There are many fine tequila's in existance. If one enjoys fine liquors and is in Mexico, he will probably order tequila. It would be similar to ordering Scotch Whiskey in Scotland.

If you view tequila as one of the important liquors of the world, you would take Scalia's comment as an implicit complement. If you view tequila as cheap, low brow hooch, you might take Scalia's comment to be racist.
10.5.2006 11:56am
GMS (mail):
abb3w:

I give you an A+. The sign of a good parody post is that it leaves people thinking, "Is he being serious? Surely not, but I can't quite tell." You push right up against the boundaries of what a humorless law professor-type might actually think and say, without descending into obvious parody and giving away the game. Good work, man.
10.5.2006 12:00pm
Truth Seeker:
Alcohol is not usually a drink itself, and Scalia was making a sentence using a concrete example. Considering the person was in Mexico, tequila would be the most logical example, rather than say cognac or whiskey. More typical left wing hypersensitivity BS.
10.5.2006 12:08pm
Debauched Sloth (mail):
Hats off to Erasmus for noting the real outrage here: The idea that a citizens' ability to challenge government-imposed conditions of release depends on some vague judicial intuition about how likely the government is to actually enforce those conditions. Here's a crazy idea -- if you're not serious about a given condition, don't include it!

Not surprisingly, the government often invokes standing and ripeness doctrines not for their intended purposes (i.e., avoiding premature litigation and conserving judicial resources by avoiding purely hypothetical questions), but rather to delay judicial resolution of a given issue as long as possible precisely so the government may continue to enforce (or threaten to enforce) the given policy without judicial interference.

For a particularly unprincipled example, check out Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005) and the denial of rehearing en banc, 413 F.3d 1 (embracing government's assertion that the possibility of being prosecuted for owning prohibited firearms in D.C. [i.e., all handguns and any functional long gun] is too speculative for would-be gun owners to maintain Second Amendment challenge).
10.5.2006 12:13pm
JRL:

One may argue whether Scalia and Alito are in fact very similar in their opinions, but not that "Scalito" is racist.

Italians are now a race? Who knew?



Scalia and Alito are now Italians? Who knew?

That explains Scalia's indignation at the use of international law. He's self-loathing!
10.5.2006 12:24pm
Ron Hardin (mail) (www):
I had to read to the end to discover that the problem was that it was offensive.

Tequila to me is some sort of Spanish drink and the title of a Get Smart episode, ``Tequila Mockingbird,'' playing on it.
10.5.2006 12:24pm
LeftLeaningVolokhReader:
I say not offensive. But, it still doesn't make Scalia less of a dick.
10.5.2006 12:35pm
josh:
I don't see how context matters. Suppose the petitioner had been from Israel and Scalia had refered to Manishevitz? How about someone from West Virginia and moonshine?

Who cares whether the context is a legal discussion about potential violations of parole? If a S Ct justice is going to imply through questioning a generalization based on race or ethnicity, I'd be offended.

Someone please tell me there would be no offense if Scalia had been talking about a Jew drinking Manishevitz violating parole.
10.5.2006 12:39pm
Bub (mail):
I havn't seen anyone other than Lithwick claim this is offensive. But it's a nice straw man for people looking to get in a lather.
10.5.2006 12:43pm
Mongoose388:
"Who cares whether the context is a legal discussion about potential violations of parole? If a S Ct justice is going to imply through questioning a generalization based on race or ethnicity, I'd be offended."

He didn't imply anything, he was offering a hypothetical situation.

"Someone please tell me there would be no offense if Scalia had been talking about a Jew drinking Manishevitz violating parole."

No offense at all.There I said it.
10.5.2006 12:50pm
DaveN (mail):
Those who want to find a reason to be offended will find a reason to be offended. Would those who feign outrage at Justice Scalia's innocuous use of the word "tequila" during the oral argument be equally offended if the word had been uttered by Justice Breyer or Justice Ginsberg?
10.5.2006 1:01pm
josh:
Bub

It's no straw man. Do a google search and you'll find numerous angry reactions from Hispanic organizations about Scalia's comments.

Mongoose

I should have been more clear in my comment. Who thinks that the Anti-Defamation League and other prominent Jewish organizations (some of which I wholeheartedly support) would not have taken offense to similar comments if the petitioner had been a Jew and Scalia had said Manishevitz?
10.5.2006 1:02pm
MnZ (mail):
I havn't seen anyone other than Lithwick claim this is offensive. But it's a nice straw man for people looking to get in a lather.


Correction, Lithwick is a strawperson. It appears that several other people are turning themselves into strawpeople as well.
10.5.2006 1:04pm
Stan Morris (mail):
The whole kerfuffle is best summed up by a phrase from heraldry: Evil to him who thinks evil, or "le mal soit à lui que le mal pense."
10.5.2006 1:15pm
josh:
Bub and MnZ

Do you even know what the definition of a straw man is? It's an argument or opponent set up so as to be easily refuted or defeated.

How is the law.com article cited in MnZ's comment or Carlos Ortiz, former president of the Hispanic National Bar Association, quoted therein, a straw man?

Is this an attack on alleged media bias? Reporting the fact that people were offended? Why did OK make the original post if not for that fact?

You disagree with the offense? OK. But are you disputing that others were?

I'm not going to persuade anyone otherwise, but I (a Jew) am convinced that had this case involved a Jew and Scalia had asked about Manishevitz, all hell would have broken out -- much of it from more traditonally conservatives places.
10.5.2006 1:24pm
JonC:
Debauch Sloth: Hats off to Erasmus for noting the real outrage here The idea that a citizens' ability to challenge government-imposed conditions of release depends on some vague judicial intuition about how likely the government is to actually enforce those conditions.

Maybe I'm missing something, but isn't the petitioner here in fact a Mexican national and not a U.S. citizen? (Unless you meant "citizen" as in "citizen of the world.") This isn't just me being pedantic- it figures importantly in Scalia's (and Roberts') skepticism towards petitioner's argument: if he were a U.S. citizen residing domestically, it would be at least theoretically possible for the U.S. government to monitor him to determine whether he's complying with the terms of his supervised release. But as he's a non-citizen residing abroad, that doesn't seem feasible.
10.5.2006 1:25pm
jgshapiro (mail):

Who thinks that the Anti-Defamation League and other prominent Jewish organizations (some of which I wholeheartedly support) would not have taken offense to similar comments if the petitioner had been a Jew and Scalia had said Manishevitz?

They may have taken offense, but that does not mean their actions would have been reasonable. The whole purpose of the post was to ask if taking offense at Scalia's comment is objectively reasonable, and the consensus is that it is not.

Likewise, for Jews and Manishevitz - though I would add one wrinkle: I don't know any Jews that actually like Manishevitz. So I don't know whether it is analogous to the 'Mexican National Drink', but I suppose the analogy works well enough, since it is commonly used in Jewish rituals as a generic kosher wine.

I don't think there really is a type of alcohol that is associated with Israel the way that Tequila is associated with Mexico, Bordeaux associated with France, Guiness associated with Ireland, Scotch Whiskey associated with Scotland, etc. Maybe Macabee Beer? As for Jews, this goes back to the issue discussed earlier that he was discussing drinking by people in Mexico, not drinking by Mexicans anywhere.
10.5.2006 1:47pm
Kazinski:
It is obvious that references to any distinguishing features of a culture are offensive. Never again will I patronize a Mexican, Italian, Chinese, French, etc.,etc.,etc. restaurant to be bombarded with these offensive cultural stereotypes. To have it immediately assumed that Mexicans are more likely to have tortillas as a side than bread, or that Italians eat a lot of boiled wheat with a tomato based sauce on it is definitely offensive to me.

I'll be traveling in Hungary in a few weeks, and woe be it to the first person that I hear describing Goulash as the Hungarian national dish.
10.5.2006 1:47pm
chris s (mail):
Josh, would you be offended if Scalia had said 'abstaining from beer in Mexico'? is it the association of tequila and Mexico that's offensive, or the notion that Mexicans - like people the world over - drink alcohol?

also, note that Scalia didn't say the petitioner was likely drunk in Mexico. he said it was a bit much to claim the guy was abstaining - ie not drinking at all - as a result of probationary conditions imposed by a country where he no longer lives.

as for some taking offense - I'm sure the usual suspects like Lithwick are offended, because they want to be.

surely we still have enough instances of outright ugliness that we don't need to start inventing them.
10.5.2006 1:48pm
Fub:
josh wrote:
I don't see how context matters. Suppose the petitioner had been from Israel and Scalia had refered to Manishevitz? ...

Someone please tell me there would be no offense if Scalia had been talking about a Jew drinking Manishevitz violating parole.
Manishevitz is not a generic drink, as Tequila is.

Manishevitz is an American winery, and not even an Israeli winery. Although its winemaking procedures are kosher, it bottles wine from American grape species, Vitis Labrusca, not European Vitis Vinifera. Labrusca grapes are well known to contain large quantities of methyl anthranilate which gives their wine its characteristic "foxy" flavor so disdained by wine connoisseurs.

Israel has many fine wineries that use Vinifera grapes. So it would seem reasonable that a Jew would be offended by such a reference, simply because it is a gross mischaracterization of typical Israeli wine consumption.
10.5.2006 1:54pm
Bub (mail):
Josh,

Thanks for defining "straw man." You've got a bright future ahead of you.

Getting offended by Scalia's remark is about as ridiculous as working yourself into a lather about Lithwick's characterization of Scalia's remark. You see what you want to see I suppose.
10.5.2006 1:58pm
Jonathan L. Katz (mail) (www):
Here's my take on the matter, in today's Underdog Blog:
http://markskatz.com/CrimeLaw.htm#52

October 5, 2006

Why did Justice Scalia say "Nobody thinks your client is really ... abstaining from tequila down in Mexico"?

Thanks to the Supreme Court for issuing oral argument transcripts within twenty-four hours. Just two days ago, Justice Scalia said this to a lawyer arguing for a favorable interpretation of the deportation law concerning his Mexican client's conviction:



We have a case involving standing which says that -- you know, the doctrine of standing is more than an exercise in the conceivable. And this seems to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going -- is going to apply having been deported from the country for criminal offenses, he is going to apply to come back -- and look, these are ingenious exercises in the conceivable. This is just not the real world.



Lopez, et al. v. Gonzales, et al., U.S. Supreme Court Nos. 05-547 &05-7664, Oct. 3, 2006, oral argument transcript at 16.



Justice Scalia declined to comment on the matter to Tony Mauro of the Legal Times. Even if he wanted to comment, I do not know how an appellate judge, particularly a Supreme Court judge, could do anything but decline to comment in order to fully and faithfully decide a pending case.



Calos Ortiz, a former president of the Hispanic National Bar Association, has advocated for appointing a Hispanic justice and more Hispanic Supreme Court law clerks. As part of his reaction to learning of Justice Scalia's above comment -- perhaps out of context -- he said: "This is the kind of incident that makes it so clear that the Court needs more diversity." Legal Times (Oct. 4, 2006).



In the audience was Benita Jain, a lawyer involved in filing an amicus brief supporting the immigrant parties in this case. She pointed out that most immigrants who could experience the impact of this Supreme Court case are "lawful residents who have been here since they were young." Legal Times. In other words, a person's citizenship is but one aspect of who the person is. Regardless of Justice Scalia's motive with the tequila comment, it should not have been made, and does not assist progress away from unfair and harmful ethnic stereotyping.



No matter our general views towards a judge, positive or negative, their actions must be kept in the sunlight. They wield too much power to do otherwise. This helps foster more diplomacy by judges, and leaves the public ready to form its own views about judges' actions. Unfortunately, I imagine that many outrageous and unfair comments and actions by judges stay in the shadows, with the witnessing lawyers reluctant to reveal the comments and actions, whether out of concern about retribution, a feeling that the comment or action is no big deal, or otherwise. Jon Katz.
10.5.2006 1:58pm
MnZ (mail):
Do you even know what the definition of a straw man is?


Of course, it means misattributing a logically and/or factually weak position to your opponent and then pointing out the logical and/or factual problems with that misattributed position.

I was merely being sarcastic. One doesn't need to build the straw men in this situation...they are building themselves.
10.5.2006 1:59pm
Stephen C. Carlson (www):
I'm not sure about that, Stephen. Seems to me that reading the transcript is the key to seeing that this has been blown out of proportion. If there had been no transcipt, the headlines would probably say "Scalia Says All Mexicans Drunks."

It seems to me, however, that if there had been no transcript, we wouldn't even have this kerfuffle in the first place. And this is the problem.

Since I am in favor of opening up oral arguments to television, I have to be disappointed by any irresponsible reporting in the media that could aggravate the reluctance of the some of the Justice about this goal.
10.5.2006 2:04pm
A. Zarkov (mail):
Steve Henderson


Many dark-skinned people have been conditioned to have a hair trigger about racial slurs.

What does THIS mean?


It means the MSM and advocacy organizations have given so much attention to supposed racial slurs that many people now have a chip on their shoulder. They get insulted when no insult was intended.
10.5.2006 2:59pm
whit:
This is a classic example of the "perpetually offended".

I just got back from Mexico. Tequila is EVERYWHERE, and certainly not just in the tourist areas and bars.

I would be willing to bet $$$, that there is more tequila consumption in mexico as %age of alcohol consumption in mexico than there is in the US, and most other countries.

It's such an obvious analogy when the subjects of Mexico and Alcoholic drinks are mentioned, and that is where his reference came from.

Slate obviously doesn't like Scalia, so their "racist colored lens" is set on "kill".

This reminds me of a recent incident with the Seattle Storm (Women's pro basketball team). It is well known WITHIN the gay (excuse me - LGBT) community, that a large %age (as compared to - say - Baseball) of the fan base for women's pro basketball is lesbians. The storm have made a specific effort to target "gay friendly" magazines and such in their advertisement. Cause they know their audience. Why not? Women's pro-basketball is seen as pro-strong-women, pro-alternative lifestyle (being a pro basketball player is certainly an unconventional lifestyle for a woman), etc. blah blah blah.

But if anybody outside the confines of the LGBT mentioned that there were a lot of lesbian viewership at women's basketball games, that is viewed as homophobic. It is no more homophobic to recognize a statistical reality that has to do with cultural/lifestyle affiliation with sports, than it is racist (mexicans aren't a race anyways, but i digress) to recognize that Tequila is basically the official alcoholic drink of mexico. What would be "offensive" is if Scalia referred to mexicans as a group, as a bunch of people drunk on tequila. THAT would be offensive. Tequila is made from CACTIUS for pete's sake (much like Sake is made from rice. )
10.5.2006 3:26pm
josh:
Bub:

"Getting offended by Scalia's remark is about as ridiculous as working yourself into a lather about Lithwick's characterization of Scalia's remark. You see what you want to see I suppose."

Where did I say I was offended by Scalia's remark. Could you cite that statement in any of my comments? You can't because I wasn't. What I was trying to do was point to the fact that it could be viewed as offensive by the targets of the ethnic generalization, and how I think (wrongly) other, more influential groups in the country would have been hopping mad about similar comments (Fub, my intent with the use of "Manishevitz" was like the use of "Kleenex" to describe any type of sweet red wine used by Jews is Passover or similar religious contexts)

Please don't attribute to me "seeing what I want to see" when I merely pointed out your misuse of the argument term "straw man."

On another note, oftentimes, I think these disputes boil down not to whether the potentially offended party is warranted in his or her offense. I don't think it's political correctivism run amok to consider one's words as being potentially offensive. There's a huge gap between that and, say, allowing censorship to prevent rioting in the Muslim world.

The first is a matter of general consideration -- the Golden Rule, if you will. The second, while still keeping the first in mind, is trumped by the need for free expression.

To be honest, I personally was not offended by Scalia's comments at al, except as evidence that he generally does not consider the effect of his words on others. And I say that despite believing that he takes great care (greater than most jurists) in considering the meaning of his words in the legal context.

The bottom line is he could have substituted "alcohol" for "tequila" to avoid what some here may feel is unreasonable offense. My only point of my coments is while people here seem quick to not the unreasonableness, as usual, had the comment applied to other ethnic, racial, religious groups, the reaction would be different.

Personally, as a Jew, had the case involved a Jew and Scalia had referred to Manishevitz, I would have laughed hard.
10.5.2006 3:28pm
Mr. Mandias (mail) (www):
Abb3 was a parody? Huh. I can never tell. I just figured he/she/other was a well-spoken, articulate person who had taken absolute leave of their senses.
10.5.2006 3:49pm
Steve Rosenbach (www):
Josh,

"...Suppose the petitioner had been from Israel and Scalia had refered to Manishevitz? ..."

Manishevitz in Israel??? No way! It's an American product. The better analogy would have been "...abstaining from Kedem down in Israel...", which doesn't sound too bad to me.

Seriously, suppose it had been a Canadian, and he had said, "... abstaining from Molson's up in Canada..." That's a more apt analogy. Who would be upset about that? William Shatner?? Mike Meyers??

Daliah Lithwick was just way, way off on this one.
10.5.2006 4:03pm
mls (mail):

It means the MSM and advocacy organizations have given so much attention to supposed racial slurs that many people now have a chip on their shoulder. They get insulted when no insult was intended.


This is a commonplace complaint -- I didn't mean to offend you, thus you have no right to be offended. Isn't it in fact possible to find certain conduct and words offensive regardless of the intent of the speaker? Consider "joking" references to Baldy or Fatty -- "gosh, can't you take a joke?! I didn't mean to hurt your feelings!" For one thing, the words don't come with an asterisk and a reference to the speaker's intent. How am I to know you didn't mean to be offensive when you called me fat?

Why this reluctance to recogize that statements relying on racial stereotype can be offensive EVEN IF the speaker wasn't intending to offend the listener? Would you apologize if you had unintentionally referred to blacks liking watermelon, or hispanics being lazy, or Jews being avaricious?

Someone I know talks about negotiating a good price as "jewing them down." When called on it, the person used the standard "I didn't MEAN to" defense (almost as popular as the "some of my best friends are . . . " defense.). I know the person fairly well, and she's a kind-hearted soul who would go out of her way not to hurt a fly. But the expression is undoubtedly offensive, isn't it? Should the listener NOT have been offended?
10.5.2006 5:36pm
Steve Henderson (mail):

It means the MSM and advocacy organizations have given so much attention to supposed racial slurs that many people now have a chip on their shoulder. They get insulted when no insult was intended.


I'd type a response, but... what do I know?

I'm just some "dark-skinned" rube who learned everything he knows about race from the MSM and advocacy organizations.

I think I'll just lighten up and take your word for it that "real" racial insults just don't happen.
10.5.2006 5:56pm
David M. Nieporent (www):
Can someone answer this for me: Why on earth would it be a condition of anyone's release, except perhaps a drunk driver's, to abstain from alcohol?
10.5.2006 6:01pm
Norman:
mls,

I understand your point and I agree, but we're not talking about situations where objectively, regardless of the intent of the speaker, there is an offensive description: we're not talking about Mexicans being lazy, Jews being avaricious, etc. We're talking about non-offensive descriptions, of which the country is proud: we're talking about tequila being prevalent in Mexico - not only is this actually true, but it is not objectively offensive, as Mexico is proud of its tequila. Thus, you have a situation where a speaker, with no intention of being offensive, says an objectively non-offensive description, and the listener still creates an offense out of nothing.

Please point out to me what is offensive about presuming that if someone was drinking alcohol, it would be tequila in Mexico, wine in France, saki in Japan, or Molson's in Canada.
10.5.2006 6:16pm
whit:
First of all, the argument that this statement is RACIST is completely absurd. Being mexican is not a race. Most of the peoples of mexico are of mixed heritage - white and native american. Some are caucasian. Some are black. Some are native american. There is no mexican "race", anymore than there is a "race" of being a US Citizen.

Similarly, being hispanic says nothing about one's race either. Hispanic is a cultural designation. It means you come from a culture that speaks spanish. One can be any race, and be hispanic.

The previous poster was right. Nobody would think it offensive if the country was Canada, and scalia referenced Molson, or Irish and they mentioned Guinness.

Yes, it is truly offensive to Mexicans to make mention that the alcohol people think of WHEN they think of Mexico is often tequila.

I'm from Rhode Island. Home of Narragansett beer (referenced in a Farrelly movie or two). I guess I should be offended if Scalia makes a "gansett" reference, but my perpetually offended PC sensor is in the shop this week.
10.5.2006 6:52pm
whit:
"not only is this actually true, but it is not objectively offensive"

Note that the entire concept of **Politically** Correct is that if something is not "appropriate", then the verity of the underlying concept is irrelevant. see: Inconvenient Truth (thanks Al)..

Examples abound, but that's the fundamental test for when somebody is being PC. Are they ignoring evidence or truth, because the truth is "offensive". This is seen in lots of stuff - the women and math thing (see: Larry Summers) being a great example. Much of criticism was that the very IDEA was offensive - iow, offensive facts are verboten. And such things should not even be studied, lest we come to unsavory conclusions.

It is a fact that Tequila is the de facto liquor you think of when u think Mexico, and there is nothing wrong with that.
10.5.2006 6:57pm
QuintCarte (mail):
I read the transcript, not having read the Slate article, and interestingly, I did not even pick up on the idea that this was somehow considered ethnically insensitive.

I genuinely thought the "scandal" was that a Supreme Court Justice was openly admitting that we don't actually expect our court orders to be followed. Kind of like he was saying, "Why are you wasting our time, you know we don't mean this sentencing stuff anyway".

No real point, I guess. Just interesting that I took it so differently than the other commenters (which I confess, I haven't read all of).
10.5.2006 7:58pm
Barbara Skolaut (mail):
I don't suppose there's any hope in Hades that all involved could just grow the hell up.
10.5.2006 8:47pm
Brian G (mail) (www):
Mexicans don't drink Tequila, just like Russians don't drink vodka, Italians don't drink wine, and the Irish don't drink whiskey. It is all stereotypes perpetuated by bigots like Scalia.

Seriously, if any of the liberal justices (Kennedy included) said it, we wouldn't have heard a word. Big deal he said it.
10.5.2006 8:47pm
Brian G (mail) (www):
Here's what Scalia should have said:

"There is not a soul who would conjure up a mental impression that your client would be abstaining from the partaking of intoxicating liquors while soaking up the fine, rich, diverse, historic, and wonderful Mexican cutlure contained in the lands below the land stolen by the white peoples during slavery days of our evil empire, an empire that continues throughout the modern day."

There, that would have made the Scali-haters happy. I think I'll send a letter to Nino giving him the above advice on how to properly play to the liberal elites like Kennedy, O'Conorr, Breyer, Stevens, and Souter do.
10.5.2006 8:57pm
A. Zarkov (mail):
“I think I'll just lighten up and take your word for it that "real" racial insults just don't happen.”

Of course they happen, but why not go for the most benign interpretation of some comment first? I try to give people the benefit of the doubt and assume they don’t mean to insult me. This policy certainly leads to a less stressful existence.
10.5.2006 9:18pm
randal (mail):
Orin -

I think the issue is not so much the mention of tequila as the supposition that a Mexican in Mexico is almost certainly drinking a lot of something. There is a stereotype of Mexicans as alcoholic.

Granted, Scalia didn't say that exactly - a person can be both not drinking and not abstaining from drinking - but his statement is at least inartful and insensitive. Scalia is often both, so I agree that this is a non-story.
10.5.2006 9:35pm
mls (mail):
Norman writes:


I understand your point and I agree, but we're not talking about situations where objectively, regardless of the intent of the speaker, there is an offensive description:


Perhaps so, but of course this discussion, like most comments on blogs, has ranged far beyond the Scalia comments -- including the post from A. Zarkov that I was responding to. I wouldn't put Scalia's remarks on a top ten list of inadvertant racism (and sorry, folks, you can talk all you want about hispanic isn't a race, or Mexicans are caucasians, but you're only doing it to avoid dealing with the REAL problem -- if you don't want to deal with it, define it away!). But I don't think it is as ridiculous as some think to consider whether stereotypes about race might have inadvertently played into Scalia's comment. Whit might feel comfortable saying, "It is a fact that Tequila is the de facto liquor you think of when u think Mexico, and there is nothing wrong with that." But I haven't seen any citation to authority for that "fact."

And the real difficulty in your argument, Norman, is in deciding what is "objectively" offensive. If you happen to be bald, you are more likely to be offended by comments about bald people than would one with a full head of hair. I GUARANTEE you I'm more likely to be offended by fat jokes!

But we don't seem to want to credit that the experience --and reaction and offense level -- of members of groups often stereotyped because of race or ethnicity will likely be different from those of groups who don't often experience such stereotyping.

The need to subjectify the objective standard is a familiar one in law -- we oftentimes read into the "reasonable person" standard the personal characteristics of the actor. We're familiar with tort law examples of the reasonable blind person when the defendant is blind, for example. In criminal law, there is considerable discussion about what personal characteristics of the accused are relevant to that familiar reasonable person when we talk about sudden passion and self defense. In sexual harrassment law, there has been quite the literature about whether the standard is a reasonable woman standard or a reasonable man standard.

But when we talk about whether persons of color should find certain remarks offensive, our "objectively offensive" standard starts to look awfully white. We want them to assume benign motives -- but that's a little harder to do when you've experienced racism than when you haven't.

And when we are talking about the human exerience of being offended, we're certainly not talking about an absolute historical truth like gravity or inertia, are we? So whose objectivity counts, yours or mine?
10.5.2006 10:05pm
great unknown (mail):
randal:
There is no such supposition. Counsel for petitioner brought up the subject of alcohol, and Scalia pointed out that it was irrelevant. The one and only statement - and supposition - that Scalia made on the subject was that the supervised probation in the United States would have nil effect on petitioner's behavior in Mexico - whether or not he actually ever used alcohol.
10.5.2006 10:13pm
great unknown (mail):
mls:
On what basis do you assume that anyone without an axe to grind - i.e., counsel for plaintiff and people seeking hispanic representation on the Court - would find the statement offensive even subjectively?
And if a handful of such people could be found, at what point does the number become significant enough to take into account?
Regarding a citation that "tequila is the de facto liquor when u think of Mexico," try googling "Mexico national drink". There are multiple citations for anyone interested ranging from Time magazine to the Mexican Board of Tourism touting Tequila as the national drink of Mexico.
10.5.2006 10:23pm
mls (mail):

On what basis do you assume that anyone without an axe to grind - i.e., counsel for plaintiff and people seeking hispanic representation on the Court - would find the statement offensive even subjectively?



On what basis do you assume that anyone without an axe to grind -- i.e., counsel for the government and people against affirmative action, political correctness, and the basic premise that racism still exists -- would find the statement completely unrelated to racial stereotyping?

Keep in mind that I have not accused Scalia of racism -- and I have not phrased my posts in the terms of ABSOLUTE certainty that I've seen from the Scalia defenders. Is there really no possible room for doubt? Is there no ambiguity? Is there no room for debate? I find the exchange interesting because of the doubt and ambiguity --much more interesting than if Scalia had called the guy "macaca," for example!

And I'm not sure why you think defense counsel has an opinion on the issue. Has he said the Scalia comment was inappropriate? I hadn't seen that. And if he had, I'd think it was a touch hypocritical of him.

Has it not occurred to ANYONE that the entire exchange -- including defense counsel's statements -- was based on stereotypes of excessive drinking by hispanics? Do you think defense counsel pulled that condition of release out of a hat? Weren't there other conditions of release which were still binding on the defendant? The entire idea that it would be burdensom on the defendant to refrain from alcohol might well start from that stereotypical thinking about hispanics. And then perhaps Scalia, also infected by that stereotypical thinking, clicks to Jose Cuervo. Who knows? That's what makes it interesting!
10.5.2006 11:47pm
ReaderY:
Suppose he had been deported to England and Scalia had used the word "gin." Would anyone object? I don't think so. What's the difference?
10.5.2006 11:49pm
ReaderY:
To get to substance, generally speaking when the government promises it won't do something (in this case, re-arrest defendant), the courts should generally accept its word unless there's special reason to distrust it. This is particularly so if there's no evidence it's ever done it in the past.

Cases where plaintiffs claim there's a case and controversy because the government might do something it's said it wouldn't do clearly violate the case-and-controversy requirement of Article III. The whole point of standing is the at least arguable presence of an immediate threat of loss. There's no possible threat here.
10.5.2006 11:57pm
Lev:
Not that it matters,


a phrase from heraldry: Evil to him who thinks evil, or "le mal soit à lui que le mal pense."


I thought it was the phrase of The Order of the Garter, and was, approximately: Honi soit que mal y pense.
10.6.2006 12:37am
Lev:
Scalia needs to get into the real world. As explicated by his fellow justices and justitrixes, foreign law and decisions apply here in the US, so, accordingly, ipso facto, res ipsa loquitor, i.e., e.g., turnaboutisfairplay, US federal district court judges have jurisdiction over everything everywhere.
10.6.2006 12:39am
Stevie J:
Scalia's remark was not offensive. He was probably just using a little colorful language in a vain attempt to keep his fellow justices awake.

The creative and lively mind is attracted to concrete language. Sometimes I think this is exactly what bothers the PC police so much-- it's so much easier to make absurd arguments if you stick to abstractions.
10.6.2006 1:17am
Suzy:
Maybe Scalia has drunk a lot of tequila every time he has been to Mexico, so the two are simply closely associated in his mind.
10.6.2006 1:44am
Can't find a good name:
Googling produces plenty of references to "tequila" as the "bebida nacional" (national drink) even on Mexican government web sites (site:gob.mx).
10.6.2006 1:54am
randal (mail):
The one and only statement - and supposition - that Scalia made on the subject was that the supervised probation in the United States would have nil effect on petitioner's behavior in Mexico - whether or not he actually ever used alcohol.

No, great unknown, Scalia said, "Nobody thinks your client is really, you know, abstaining from tequila down in Mexico". That's certainly not a very good way to phrase it. I agree, there's nothing to the story - it's not bigoted in fact - but it is regrettable.
10.6.2006 3:05am
Norman:
Reading the transcript, it is clear that the issue of Petitioner's drinking alcohol in Mexico was already being discussed. Scalia didn't bring it up. The only presumption or association Scalia made was that if someone was drinking alcohol in Mexico, he or she would be drinking tequila.

I submit that this association of Mexico to tequila is not offensive, because Mexico actually encourages, enjoys, and appreciates its close assocation with tequila. That makes this scenario different from other offensive associations - women and lesser math skills, me and my baldness, etc. - which are associations which, even if they might be true, the entity in the association doesn't appreciate or enjoy.
10.6.2006 10:58am
great unknown (mail):
randal:
The complete relevant quote, in the section of the transcript cited in the original blog, is "Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States ..." I.e., the supervised release in the U.S. is likely not affecting the behavior of the client.
You must have read a dowdified version of the quote.
10.6.2006 12:49pm
domovoi (mail):
"Nobody thinks he's doing A because of B."

In most situations, this would be interpreted as implying "he" actually is doing A, but not because of B.

"Nobody thinks you're buying that coffee because you like it."

"Nobody thinks you're flirting with that girl because you want a committed relationship."

etc.
10.6.2006 12:57pm
whit:
scalia's statement is only regrettable, because it's caused an explosion of PC groupthink hypersensitivity rubbish. there is nothing offensive about his statement, any more than the gin reference to jolly old england, or the guinness reference to ireland, if alcohol and the country was already brought up (which is the case).

the difference between mexico, the UK, Ireland, etc. is that mexico has a majority population of "people of color" and thus everything is viewed through the "how can we twist this into a racial slur" lens. in the cases of the other countrie, nobody would care because the dominating leftwing pc groupthink mantra is that whites are more prone to racism since they have "power", whereas people of color are The Oppressed (tm) and thus extra specially sensitive.
10.6.2006 2:39pm
great unknown (mail):
domovoi:
I don't quite get your point. It seems that you are saying the Scalia was implying "he" is actually doing A: i.e., abstaining from tequila. Are you emphasizing that Scalia was implying that the client was actually practicing abstention ("A"), and therefore the statement is the exact opposite of the racial stereotyping that Scalia is being accused of? Or is abstention from tequila in Mexico some kind of cultural insult?
10.6.2006 2:52pm
Stevie J:
Mitchell Freedman: the word "Kulturkampf" refers primarily to Otto von Bismarck's anti-Catholic campaign of the 1870s, and German history scholars need to use it for that purpose. It was used again during the Nazi period by religious groups who were accusing the Nazis of a renewed war on religion. If you think it was used by the Nazis themselves, I'd love to see a citation.

In any case, it has a specific scholarly meaning and it is needed for that purpose. Was there any point to your post besides saying that hearing a word spoken in German makes you think of Nazis?
10.6.2006 7:03pm
randal (mail):
domovoi -

Almost but not quite. The construction

"Nobody thinks he's doing A because of B."

can mean either "He's doing A, but it's for some reason besides B (regardless of whether B is true or not)" or "He's not doing A, because nobody thinks B (although true) would cause him to do it."

If B is not (necessarily) true, as in "Nobody thinks he's buying that coffee because he likes it," then the statement says: he doesn't like the coffee, but he is buying it.

If B is true, as in "Nobody thinks he's abstaining from tequila down in Mexico because he's on supervisied release in the United States," then the statement says: he is on supervisied release in the United States, but he's not abstaining from tequila down in Mexico.

Therefore, great unknown, Scalia is at minimum strongly suggesting that the Mexican isn't abstaining from tequila down in Mexico.

Now, if I were to say, "great unknown certainly isn't abstaining from being a total tool", would you be more likely to interpret that as suggesting you were being a total tool, or that you weren't being a total tool and had no interest in being a total tool to boot?

My defense is, I didn't say you were being a total tool, just that you weren't abstaining from it. Pretty weak defense, no?
10.6.2006 7:57pm
randal (mail):
domovoi - consider -

Him: Doesn't he like Starbucks?
Her: He loves it, but he can't really afford it.
Him: He has a little money, right? What does he spend it on if not good coffee?
Her: I dunno. His kids? Nobody thinks he's buying that coffee because he likes it.

Eh? Not great, but you used a phrase ("he's buying that coffee") that's difficult to cast as a counterfactual, especially because of the "that". A tweak makes it better:

Her: I dunno. His kids? Nobody thinks he spends it on coffee because he likes it.
10.6.2006 8:37pm
Stevie J:
domovoi, randal, great unknown:

Introducing additional examples with subtly different syntax and semantics does not help us parse Scalia's original statement. I claim that Scalia's statement makes no assertion about whether or not "he" is drinking tequila down in Mexico. Because, consider the original statement:

"Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States ..."

Now consider that he could have followed that up with: "In fact, I have heard that he's drinking like a fish," implying that he is not abstaining.

On the other hand, he could have also followed it up with: "He's abstaining from tequila because while he was in the United States he developed a taste for Budweiser (the King of Beers)," implying that he is abstaining.

Either followup is compatible with the original statement; thus it makes no assertion about whether or not he is abstaining.
10.6.2006 11:57pm
randal (mail):
Stevie -

How I wish Scalia would say "Budweiser (the King of Beers)" in any context.

Sounds like we're making the same point. Scalia's statement is ambiguous, and within that ambiguity it carries the suggestion that the Mexican is drinking. I would say it's the most natural reading, but that much is subjective.
10.7.2006 12:46am
Stevie J:
Randal:

We are in agreement: we agree that his statement is ambiguous. We part ways when you make a brilliant (but I think misguided) attempt to mangle his ambiguous statement into an unambiguous assertion (which would also slur Mexicans).

Maybe we are in agreement in another way as well: I don't think his statement by itself implies anything negative about Mexicans, but his statement plus a negative stereotype in the mind of his listener would make that implication.

The thing is, I don't think Scalia is responsible for the negative stereotypes in the minds of his listeners, nor does he have to censor his speech in order to tiptoe around them; I gather that some here disagree.

This is an interesting discussion and I would enjoy it all the more over a nice tequila...
10.7.2006 1:35am
randal (mail):
I don't think his statement by itself implies anything negative about Mexicans, but his statement plus a negative stereotype in the mind of his listener would make that implication.

Exactly. Although I'd change "negative stereotype" to "sensitivity to stereotypes".

I agree that Scalia is not responsible for his listeners' sensitivities. All the other judges are sensitive to that kind of thing, and he's not. The end.
10.7.2006 7:20pm
Milhouse (www):
Steve Rosenbach: Kedem is just as American as Manischevitz. And yes, it would be offensive to suggest that just because someone is Jewish he is likely to be drinking such crap, instead of something decent. But Scalia wasn't even suggesting that the petitioner was drinking tequila because he is Mexican, but because he's in Mexico, and tequila is something drinkers who are in Mexico are likely to drink, no matter where they're from.
10.9.2006 10:16pm