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Constitutional Interpretation and Judicial Nominations

Justice Antonin Scalia gave a speech two days ago at the Woodrow Wilson Center for Scholars on the topic of Constitutional Interpretation (read the transcript here, via Instapundit). This is a topic near and dear to my heart, as I am currently writing an undergraduate honors thesis that deals directly with Constitutional interpretation.

Scalia is regularly lambasted by those who don’t agree with his political ideology for being too conservative, but I have long been a fan of his written opinions; they are among the most logically consistent and easy to read examples of legal scholarship to be found. And yes, his opinions are works of legal scholarship, you may disagree with what he says but it’s hard to disagree with the facts and the cases he cites when making an argument.

Scalia ended his speech by talking briefly about how the current judicial nomination process is threatening to damage the Constitution. This topic was brought into sharp focus by Senate Minority Leader (and shaping up to be its chief obstructionist) Harry Reid threatened that Senate Democrats will stall any and all Senate business they can if the Republican majority modifies the Senate rules to disallow filibusters on Judicial nominations. The thing to remember is that this cuts both ways, it is seen as a “conservative” issue now, but a decade ago it was a “liberal” issue when it was Clinton's nominees that were meeting resitance from a newly elected Republican Congress. However, I can practically guarantee you that Justice Scalia’s remarks would have been the same in 1995 as they were in 2005:

You heard in the introduction that I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want…

I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts, you know, “Judge so and so, do you think there is a right to this in the Constitution? You don’t?! Well my constituents’ think there ought to be, and I’m not going to appoint to the court someone who is not going to find that.” When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.

And that of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two-hundred years.”

Justice Scalia's point is important. As John Marshal noted 200 years ago "It is a Constitution we are expounding," not some small piece of legislation. It deserves better than partisan vitriol and rancor. The rest of his speech is just as good, but not as topical to the current political climate. If you have time, I’d suggest you give it a read.

Posted by · 16 March 2005 08:03 PM


"My most important function on the Supreme Court is to tell the majority to take a walk."

Heh. I woulda used "to go f#@% themselves", but that's just me...

Posted by: b-psycho at March 16, 2005 11:54 PM

I think Scalia would make a good Chief Justice.

Posted by: Will Franklin at March 17, 2005 01:32 PM

Scalia would be a great Chief Justice! Our country would be lucky to have Scalia !

That b-psycho comment is just what the name implies!

Posted by: stephanie at March 17, 2005 05:13 PM