A common criticism of Justice Scalia—one that I’m sure will affect the obituaries—was that his “angry,” “bitter” dissents were unbecoming of a justice, self-defeating as a matter of coalition-building, and corrosive to the institution. I myself think that Justice Scalia’s tone, when he wrote in this style, usually reflected a justifiable dismissiveness of bad arguments. More than that: He was warning Americans that the enterprise in which his colleagues were too frequently engaged was not the interpretation of law at all. He was saying, bluntly, that they were rewriting the Constitution to suit their preferences.
Those of us who agree with Scalia’s view should keep it in mind as we consider how to respond to the vacancy on the Supreme Court. The Constitution gives President Obama the power to nominate someone to fill it, and gives the Senate the power to decide whether to hold a vote on his nominee. Those who want Obama to have another Supreme Court appointment are going to make their arguments that time-honored norms militate in favor of what they want, and those who don’t will find time-honored norms that militate the other way. The fact that this president has repeatedly stretched the Constitution will doubtless also be part of the debate, as it should be.
But the norms surrounding the Court also need to be rethought in light of the role it has come to play in our national life over the last few decades. Senators—first the Democrats, then the Republicans—have already largely abandoned the old norm of “deference” to a president’s nominees: the idea that a nominee should be confirmed so long as he is ethical, has the relevant credentials, and is respected by other lawyers. As the Court has taken on more legislative authority, senators have begun to evaluate nominees as potential lawmakers.
As presidents also evaluate them. Obama has made it clear that he wants justices who will satisfy certain liberal litmus tests.
If the Supreme Court were a fundamentally apolitical body in the relevant sense—if the justices were engaged in the interpretation of legal texts in as neutral a manner as possible, letting the chips fall where they may; if, because they were neutrally interpreting a Constitution that does not grant them significant authority to decide nearly as many policy questions as they do, their decisions mattered less for the dirction of public policy; if the justices disagreed merely on the close and technical questions that even a sound judicial philosophy would leave open—then it would be entirely reasonable for senators who disagree with Obama on most issues to vote for his judges anyway. And it would be entirely reasonable to facilitate Obama’s replacement of Justice Scalia, even in a presidential-election year.
But that is not the situation we are now in, and Republicans should have no compunctions about acting accordingly.