Justice Scalia Warns Liberals Not to Pick on the ACLU

During the Supreme Court oral argument this morning in FEC/McCain v. Wisconsin Right to Life, Justice Scalia asked former Clinton Solicitor General Seth Waxman to explain why he was "picking on the ACLU." Justice Scalia's truly unexpected question engendered laughter in the courtroom.

In response to Justice Alito's question pointing to the number of advocacy groups filing amicus briefs in support of Wisconsin Right to Life's ("WRL") freedom of speech, former General Waxman spent a great deal of time focusing on the ACLU's filing against application of McCain Feingold in this case, criticizing the ACLU for its position because the ACLU has a policy of not running ads in favor or against political candidates.

The relevancy of the ACLU's policy to its amicus arguments was not clear, and Justice Scalia finally cut off this particular argument by asking Mr. Waxman, "Why are you picking on the ACLU?"

Who would ever have expected to see Justice Scalia defending the ACLU from the criticism of a Clinton Administration official?