Oh, the irony. Turns out the defendant in Justice Scalia’s poster child case for the death penalty:
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. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!
is – well – innocent. Gamso’s all over it, of course. As he should be.
Nino’s not our Bete Noire over here at Lawyers on Strike. We often agree with Nino. But then we have some serious disagreements, too.
A couple of large topics beyond that are in play here, though.
First is the death penalty. We don’t care for it, but Nino happens to be correct – absolutely, unarguably correct – that there’s nothing unconstitutional about it. At least not now. The constitution could be amended to make the death penalty unconstitutional, of course, but the population at large has to do that, not justices of the Supreme Court.
So to that extent, we agree with Nino.
But there’s something else going on here that we find more troubling. A few news outlets here and there have noted how Nino’s rhetorical flourishes went embarrassingly wide the mark here, but the reaction has been muted.
We’ll hazard a guess as to why that might be the case: Nino’s “credentials” are beyond reproach. He went to the right law school, did well there academically, and pretty much followed the standard, approved, and privileged “career path” all the way to his current high perch. He and other members of the elite may disagree about some things, but in the most important matter of all – who’s in the club – there is no disagreement whatsoever.
A lot rides on such credentials being revered, and nothing undermines the starry-eyed reverence for them more than an episode where the man who possesses them is shown to be flagrantly wrong. Harvard sits on a $32 billion “endowment” that is grounded in its supposed ability to identify and produce the “best and the brightest”. But a few examples of these best and brightest being flagrantly wrong could eat into the (over) confidence that is embodied in that over-sized nest egg.
Thus, trumpeting Nino’s flagrant error doesn’t harm just Nino’s reputation; it also harms Harvard’s reputation. So it’s not just about Nino. He has his enemies among the elite, but they’re not in the habit of cutting off their noses to spite their faces. If they could find some personal peccadillo to tar Nino with, I’m sure they would. Pointing out a flagrant professional error, however, undermines the mythology that credentials assure brilliance, and every Harvard graduate’s livelihood – not to mention often overblown self image – depends on that mythology.
Of course Nino doesn’t make just flagrant factual errors; he makes flagrant legal errors, too. We have been constrained to point this out before.
We don’t fault Nino terribly for this particular legal error even though a good argument can be made that it has personally cost us dearly. Yet it is a fairly stupid – and fairly revealing – error, because it means that not only Nino but several generations of his law clerks, all of whom have credentials rivaling his own, have never read Pyle v. Kansas. Or if they did, they did not understand it, which in itself is something because there’s nothing terribly difficult about understanding that case.
How vigilant and defensive the elites have to be to protect and preserve a credential mythology they must themselves believe to be quite fragile. Otherwise, why be so defensive about it?
And our press persons are slaves to the same mythology.
Credentials don’t make truth, though. Motto notwithstanding, Harvard gets no monopoly. But so many have a vested interest in pretending otherwise that a great “gotcha” story about Nino gets little play in the Washington and New York media centers.