On Thursday's Legal View with Ashleigh Banfield on CNN, host Banfield joined CNN legal analyst Paul Callan and Joey Jackson of HLN -- sister network to CNN -- in deriding conservative Supreme Court Justice Antonin Scalia for recently referencing an argument against affirmative action in higher education admissions.
As HLN legal analyst Jackson called Justice Scalia's remarks "disturbing" and "offensive," Callan asserted that the conservative justice "sounded a little nutty," and Banfield declared that "I cannot believe I'm hearing those words from a Supreme Court justice."
Banfield raised charges of racism against Scalia as she introduced the segment:
The Senate Minority Leader is suggesting that a Supreme Court justice is racist. It's not something you often hear. Senator Harry Reid reacting to oral arguments made this week by Justice Antonin Scalia. Scalia is appearing to take the position that African-American college students don't fit well in the nation's top universities. Again, appearing? Or does he feel this way? Here's what he actually said:
The CNN host then quoted some of Justice Scalia's words:
There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them.
A presumably appalled Banfield then added: "While that sinks in, let's get some analysis."
After introducing her guests, she complained:
Joey Jackson, on its surface, I cannot believe I'm hearing those words from a Supreme Court justice. There are only nine of them. They are the top of the food chain in this country. Is there more to it than what we're seeing on the surface?
The HLN legal analyst began:
Well, there could be. And here's what it is. I mean, certainly, in the event that they come from him, it's disturbing. Obviously it's offensive.
After some discussion of whether Scalia's words represent his own personal opinion or just an acknowledgment of the opinions of others, Banfield used the word "ascerbic" to tag the conservative justice as she added:
And you need to give him the benefit of the doubt on this, although Scalia sometimes doesn't offer a lot of opportunity because he does say some pretty ascerbic things. Let me go on to what the Senate Minority Leader said. Harry Reid, well, you know, let me just, you just need to hear it from his own voice because it was pretty alarming. Have a listen.
Then came a clip of Senate Minority Leader Harry Reid suggesting racism by Justice Scalia. Reid:
It's stunning, a man of his intellect. I've always acknowledged his intellect. But these ideas that he pronounced yesterday are racist in application, if not intent. I don't know about his intent. But it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench of the nation's highest court.
Callan introduced the word "nutty" into the conversation as he began his analysis:
Well, you know, Scalia, whose most famous quote maybe is that "I'm an originalist, but I'm not a nut," sounded a little nutty yesterday in the way he expressed, I think, a doctrine that the Court has been struggling with.
Below is a complete transcript of the segment from the Thursday, December 10, Legal View with Ashleigh Banfield on CNN:
12:55 p.m.
ASHLEIGH BANFIELD: The Senate Minority Leader is suggesting that a Supreme Court justice is racist. It's not something you often hear. Senator Harry Reid reacting to oral arguments made this week by Justice Antonin Scalia. Scalia is appearing to take the position that African-American college students don't fit well in the nation's top universities. Again, appearing? Or does he feel this way? Here's what he actually said:
There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them.
While that sinks in, let's get some analysis. Joey Jackson is here. Paul Callan is here. Joey Jackson, on its surface, I cannot believe I'm hearing those words from a Supreme Court justice. There are only nine of them. They are the top of the food chain in this country. Is there more to it than what we're seeing on the surface?
JOEY JACKSON, HLN LEGAL ANALYST: Well, there could be. And here's what it is. I mean, certainly, in the event that they come from him, it's disturbing. Obviously it's offensive.
BANFIELD: You mean the comments straight from his own thoughts?
JACKSON: Precisely. In other words, from his own thought process, as opposed to him quoting what a school of thought is that's out there. There is a school of thought out there that would suggest exactly what the justice suggested, and that school of thought certainly needs to be rebuked in all respect. But the fact is, was this something that was emanating from what he believes? Or was he referencing a theory? And that theory is certainly counterbalanced by another theory which says that that's hogwash.
BANFIELD: And when you say the theory, he was actually quoting some briefs in his conversations, and so it is possible that he was referring to other people's theories as opposed to his own, so-
JACKSON: In addition to an article by a Professor Sander who is noted for this mismatch theory that he was referencing, yes.
BANFIELD: And you need to give him the benefit of the doubt on this, although Scalia sometimes doesn't offer a lot of opportunity because he does say some pretty ascerbic things. Let me go on to what the Senate Minority Leader said. Harry Reid, well, you know, let me just, you just need to hear it from his own voice because it was pretty alarming. Have a listen.
HARRY REID, SENATE MINORITY LEADER: It's stunning, a man of his intellect. I've always acknowledged his intellect. But these ideas that he pronounced yesterday are racist in application, if not intent. I don't know about his intent. But it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench of the nation's highest court.
BANFIELD: The Minority Leader saying some pretty tough stuff on the floor of the Senate. Paul Callan, it's important to remember that there is a big argument that's at stake now, not just what Antonin Scalia said, but the case itself that has been hard fought over the better part of a decade. It's gone back and forth to the Supreme Court at least twice. The issue at hand, help me understand, what did the conservative justices have to say yesterday in the oral arguments, as opposed to the liberal justices?
PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, Scalia, whose most famous quote maybe is that "I'm an originalist, but I'm not a nut," sounded a little nutty yesterday in the way he expressed, I think, a doctrine that the Court has been struggling with. And this is the doctrine: It's that we want diversity in all parts of American society, particularly college campuses. But a lot of kids who come from minority communities where the schools aren't very good don't get the test scores that white students in the suburbs get. So we've got to find a way to get those kids into good colleges so that we have a diverse college.
But what's being discovered is, according to Scalia and conservative thought, is that a lot of these kids who do get into these good schools don't have the skills to function there. And they feel isolated, and they don't do well. Whereas, if they were on a different track and went to schools that allow them to develop their skill set before they get into Harvard, then you would have a better system. And that's what the debate is about. ... I just want to explain on the Fisher case, the central thing is, there's a white student in the Fisher case who says, you know, my grades should have qualified me to get into the University of Texas, but because they're now using two standards -- one, if you're a top ten percent of your graduating class which has gotten over 20 percent of kids into Texas and now they're applying a different standard-
JACKSON: Briefly, I know we're out of time, the fact is that theory that Paul is saying has been rebuked, and certainly there's another theory that when you, you know, you put students in a school, you challenge them, they become better, you know, they service their communities and everything else, and so it's important to know we're talking about theories and a theory that Scalia was referencing is one that certainly has been told to be not true.
BANFIELD: And it looks like those arguments are pointing toward affirmative action being wiped out, but, you know, we've been wrong before by listening to just the arguments.
