Carol Platt Liebau: Justice Scalia on Politicized Judicial Confirmations

Monday, August 29, 2005

Justice Scalia on Politicized Judicial Confirmations

It was a great privilege to have the opportunity to hear Justice Antonin Scalia give the annual Madison Lecture this evening at Chapman University School of Law. (Please note it was public and open to the press).

The topic of his talk was "Constitutional Interpretation, or Why Judicial Nominations Have Become Controversial" -- and, of course, it was brilliant. Justice Scalia pointed out that, during the last half of the twentieth century, the notion of a "living Constitution" (i.e. a Constitution that is interpreted in accordance with justices' notions of "evolving standards of justice") has created a climate in which society's most difficult moral questions are settled not by legislatures (i.e. the voice of the people), but by unelected judges, who manage to find novel "rights" in the Constitution despite the lack of a clear historial or textual basis for them.

However, according to the Justice, because America is, indeed, a democratic society, the peoples' voices will be heard -- one way or another. And if judges begin acting as superlegislatures -- settling moral questions that they have no special qualifications to decide -- then the judicial confirmation process will become political. In other words, if the Justices are going to start interpreting the Constitution in accordance with their own political and policy predilections, then all different political groups are going to try to ensure that the person making the superlegislative decisions are making them in a way with which the political group agrees.

Or, to put it in the most starkly simple terms: The more that judges act like politicians, the more political the nomination and confirmation processes will become -- to the detriment of the system of self-government set forth in the Constitution.

Once the process is completely political, as Justice Scalia points out, the Constitution ceases to fulfil its function of stopping the majority from doing whatever it wants to do -- rather, it becomes nothing more than a tool of the majority's will. Dangerous, indeed.

The responsibility for the regrettable politicization of judicial nominations lies directly with Democrats, in my view. They are the ones who began the practice of "Borking" back in 1987 because they were afraid of losing control of the judicial branch. Now that Dems control neither the presidency nor Congress, their fear has grown to the point where they are trying to "bork" federal circuit court judges, as well. (And note the contrast between the treatment of R.B. Ginsburg/Breyer vs. that of Bork/D. Ginsburg/Souter/Thomas).

As Justice Scalia pointed out, every Republican president since Richard Nixon has sworn to pick only justices that believe in "judicial restraint"; in contrast, every Democratic nominee since Michael Dukakis has pledged to nominate justices who will uphold Roe v. Wade (i.e., justices who are willing to take upon themselves the power to decide when life begins and how nascent life can/should be treated). To me, that really says it all.

Finally, one little joke from the Justice:

Q. What is the meaning of a "moderate" interpretation of the Constitution?
A. An interpretation halfway between what the Constitution says and what a justice would like it to say.

3 Comments:

Blogger SpiritualFields said...

Also, as pointed out by this month's Atlantic

Link

not only are the judges getting more activist, but they are getting more removed from the people. Not sure where Scalia fits with this rap (did he ever defend a case, argue a position in a court of law, i.e. actually work in an environment populated by common working stiffs?...probably not or he couldn't have gotten elected in this climate). There is a partisan force building to change the constitution, with respect the supreme court tenure. Since this is up your alley, I'm sure you'd have a strong opinion on this, one way or the other. The link I provided is just an teaser...unfortunately you need an account to see the entire article.

Ed

1:00 AM  
Blogger SpiritualFields said...

Actually, it looks like the entire article that I linked to in my previous comment is available in its entirety. It was a two part article, written by two authors, and what I linked to was the second part, doing with activism. Here is the link to the first part of the article, dealing with the judges' estrangement from the people.

Link

Ed

1:13 AM  
Blogger Draino said...

Kewl Carol. Give a lot more power to the legislature - just don't change your tune when liberals come back to power. I realize, of course, that given your rampant hypocricy this will be difficult. Anyway, judging by the consistent post-election slide in the polls republican days are numbered. So unless you guys come up with yet another way to steal an election I'm all for it. Power to the people sister!

7:37 PM  

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