Ad Hominem Attacks
This was not an ad hominem attack. Phocion misunderstands the purpose of the phrasing of the question. Berndt -- prior to Lawrence depending on his state of residence -- could have been questioned (or arrested) because of his sex acts, denied child custody or been fired as a result of that questioning, and so on. Berndt turned the tables in a way that no one at a law-school event would expect.ad hom i nem; adj.
Appealing to personal considerations rather than to logic or reason: Debaters should avoid ad hominem arguments that question their opponents' motives.To what was Mr. Berndt "appealing?" It seems that an appeal to logic or reason would have been phrased this way: "Justice Scalia, do you want the government to regulate your private conduct in your bedroom?" The Justice would have answered that regardless of whether he wants that conduct regulated, he would not strike down a law as unconstitutional. For Scalia, the homo/heterosexual distinction is not the issue.
Instead, I think, Mr. Berndt was trying to "out" the Justice as a homophobe in order to undermine his position on constitutional interpretation. From his statement at Wonkette:
[A]n independent motivation for my speech-act was to simply subject a homophobic government official to the same indignity to which he would subject millions of gay Americans. It was partially a naked act of resistance and a refusal to be silenced. I wanted to make him and everyone in the room aware of the dehumanizing effect of trivializing such an important relationship.Now regardless of whether this is true, or tactful, or a good thing for the gay rights movement, this is an ad hominem attack. The merits of Justice Scalia's constitutional interpretation has nothing to do with whether he is a homophobe. Even if the Justice were an originalist solely because it keeps rights away from gays, this would be an ad hominem attack.
Mr. Berndt also explains that his "legal" reason for the outburst was to somehow argue with Scalia's failure to address Justice Kennedy's point in Lawrence that the state action did not advance a legitimate enough interest:
Even so, I did have a legal point: Justice Kennedy's majority opinion in Lawrence asked whether criminalizing homosexual conduct advanced a state interest "which could justify the intrusion into the personal and private life of the individual." Scalia did not answer this question in his dissent because he believed the state need only assert a legitimate interest to defeat non-fundamental liberties. I basically asked him this question againSilly. This is both a stretch, and (I think) an afterthought. Mr. Berndt did not ask him this question.
Again, I don't know whether this outburst was a good or bad thing for the gay rights movement. I suspect it's bad because tactlessly attacking Supreme Court Justices' personal sex lives is going to offend just about everyone. But this was definitely an ad hominem attack, with no resemblence of a real legal argument. These kind of attacks don't convince anyone of anything.