Wednesday, March 16, 2005
"The American people have figured it out": Justice Antonin Scalia gave a talk earlier this week at the Woodrow Wilson Center on the less-than-sexy topic of "Constitutional Interpretation." Most media outlets zeroed in on Scalia's blistering attack on the Court's recent decision abolishing the juvenile death penalty.
However, Scalia's comments on the current state of judicial confirmations was much more interesting with the imminent use of the so-called "nuclear option" for ending Democratic filibusters of judicial nominees.
The worst thing about the "living Constitution" is that it will destroy the Constitution. You heard in the introduction that I was confirmed close to 19 years ago now, by a vote of 98-0. The two missing were Barry Goldwater and Jake Garn, so make it 100. I was known at that time to be, you know, in my political and social views, fairly conservative. But 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, so I was unanimously confirmed.
Today, barely 20 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're selecting lawyers. If we're 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 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 who will write the new Constitution that we would want. And that's why you hear in the discourse in this subject, people talking about "moderate." We want "moderate" judges. What is a "moderate" interpretation of a text? Halfway between what it really means and what you'd like it to mean?
There's no such thing as a moderate interpretation of a text. Would you ask a lawyer to draw you a moderate contract? The only way the word has any meaning is if you are looking for somebody to write a law, to write a Constitution, rather than to interpret one. The moderate judge is the one who will devise the new Constitution that most people would approve of.
So, for example, we had a suicide case some terms ago, and the Court refused to hold there is a Constitutional right to assisted suicide. We said we're not yet ready to say that. Stay tuned, in a few years the time may come, but we're not yet ready. And that was a moderate decision, because I think most people would not want a ...
If we had leapt into that and created a national right to assisted suicide that would've been an immoderate and extremist decision.
Well, 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 the lower courts: "Judge so-and-so, do you think there's a right to this in the Constitution? You don't? Well, my constituents think that there ought to be, and I'm not going to appoint to the court someone who's not going to find that."
When we're 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 principal utility. The Bill of Rights is meant 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 are a recipe for the destruction of what we've had for 200 years.
Those on the loony left like to paint horror stories about an America where the Supreme Court has 9 Antonin Scalias and the police state that would ensue.
That couldn't be further from the truth. A court dominated by "originalists," as Scalia styles himself, would give Americans more freedom. More power would reside in the Congress and state legislatures, and less would set off limits by the Supreme Court.
For those who are interested in seeing the speech, go to CSPAN.org and look under "Recent Events."