With the death of Justice Antonin Scalia on February 13, we lost an intellectual giant. Scalia (1936-2016) passed away in Texas of natural causes. Appointed by President Reagan in 1986, he served on the Supreme Court for 30 years.
A constitutional originalist and textualist, Scalia based his legal decisions on historical interpretations of law. He opposed the notion of a “living” Constitution, instead understanding the document as it is explicitly written. Scalia executed his job faithfully and passionately, consistently defending the individual rights he believed the Constitution was meant to protect.
Scalia recognized that the Supreme Court should be a non-political body that judges strictly according the Constitution’s text and enumerated powers. Scalia strongly believed in states’ rights, local government, and limited federal jurisdiction. His career on the Supreme Court is a testament to the historical significance and responsibilities of the court.
Many people disagree with the outcomes of Scalia’s decisions, but still respectfully acknowledge his contribution to law and remarkable service to his country. President Obama paid his respects, characterizing Scalia as a “brilliant legal mind with an energetic style, incisive wit, and colorful opinions.”
But just hours after Scalia’s passing, politicization of a potential nominee began. Some progressives claim “it is time” for a person of such-and-such identity group to sit on the Supreme Court. This identity-driven proposition (tokenism, perhaps?) would needlessly and unfairly eliminate qualified candidates from a position where identity should be irrelevant.
President Obama can either nominate a Scalia replacement or wait and let the next president make a nomination. The Senate has the constitutional obligation to confirm or deny the nominee. Since the court still functions with fewer than nine members, the Senate has no obligation to immediately fill the seat.
During President George W. Bush’s tenure, Democrats filibustered ten judicial nominations, setting the dangerous precedent of rejecting nominees who had majority support in the Senate.
Nominee Samuel Alito gained enough bipartisan support to overwhelm the Democrats’ minority filibuster attempt. Even in Reagan’s presidency, Democrats opposed Robert Bork’s constitutional originalism on a political basis, denying his nomination.
If Obama nominates another judicial activist to the Supreme Court, the Senate should deny the nominee. Republican Senator Mitch McConnell’s proposal to ignore Obama’s potential nominees reflects low expectations.
The addition of a judicial activist would give the liberal wing of the court a 5-4 majority (with Sotomayor, Kagan, Breyer, and Ginsburg). Liberal justices have a record of expanding or inventing constitutional law to promote their political positions, bypassing the legislative and executive branches. A conservative Senate should, therefore, wait for a president willing to nominate an originalist to the Supreme Court.
In Scalia’s words, constitutional activism and revisionism “robs people of the most important liberty… the freedom to govern themselves.” The idea that a five-person majority on an unelected court should engage in judicial legislation based on always-changing interpretations of the law is anti-democratic.
Progressives would like the Supreme Court to act as another political body that exerts its will on American society and law, regardless of legal precedent. Their ends are justified, regardless of what legal “jiggery-pokery” is necessary. The dangers posed by such a legally malleable court should be self-evident.
The loss of Justice Scalia will profoundly affect the Supreme Court. We must not forget, as John Adams wrote, that our government is “of laws and not of men,” meaning, in Scalia’s words, that “we are governed by the terms of our laws, not by the unenacted will of our lawmakers.”