Bench Memos

Scalia at St Thomas: On Judicial Appointments Politics

I wrote a short piece for The Public Discourse, just posted, entitled “Scalia at St. Thomas: Closing Arguments.”   Last fall, Justice Antonin Scalia visited the University of St. Thomas School of Law, where I teach, and had some extraordinarily interesting things to say – some that now seem poignantly insightful and memorable, and some that were just plain witty and fun. 

An excerpt concerning judicial appointments politics, about Scalia’s response to a student question :

An awkward question at the time that seems positively poignant now: So many of the justices are getting old. What did he think about the likelihood of future appointments to the Court? Scalia responded in stride—and with seemingly prophetic insight. Presidents, when making appointments, tend to ask, “How will this benefit me?” He seemed to call for more serious consideration of the Constitution in making and confirming—or not confirming—nominations to the Supreme Court. (This despite the fact that, in 1986, Scalia successfully dodged all substantive questions—the last nominee to stonewall the senators completely.)

Historically, Scalia grumbled, “Republicans have not cared that much.” In marked contrast, “Democrats care.” They have an explicitly pro-Roe v. Wadel itmus test. Republicans’ litmus test is “‘We do not have a litmus test’! Now who’s going to win that?!” Republicans’ abdication of constitutional principle and debate made absolutely no strategic sense to Scalia.

The story with which I close the piece – a story Scalia told on himself as a young student – is particularly memorable.  

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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