Director, Commonwealth Policy Center

Supreme Court Justice Antonin Scalia lies in repose in Washington DC this morning. One of the longest standing justices to even sit on the bench passed away last Saturday. Scalia stood as a towering figure of conservatism in the last 30 years. Yet barely an hour passed before the wonderful tributes to Scalia’s legacy turned to rancorous political speak about who President Obama would nominate to replace the quick-witted justice. Many noted that it is within the confines of the constitution that the President nominate a Supreme Court justice. They are correct. Article 2, section 2 of the constitution clearly delineates that the President of the United States alone is endowed with the right to nominate. It also states that the Senate must also “advise and consent” the President’s nomination. In other words, it is not a slam dunk that the individual the President nominates will also be confirmed as we saw with Robert Bork, Harriet Miers, and others. So, the questions arising in the last few days is what type of SCOTUS appointment will the President make? Will he nominate a full-throated liberal? Will be attempt to hedge his bets and nominate an eminently qualified but moderate justice? Seeing that he’s already said no to the latter, it seems to stand that he will nominate someone in the vein of his political philosophy, as is his right. 

However, if one were able to advise the President on this nomination, it would be worth considering a nominee in the “spirit of Scalia.” While this might imply a conservative justice, it can also mean nominating someone who undertakes Scalia’s approach to the “importance” of the Supreme Court. He understood, maybe more than any other justice in recent history, how disproportionate the American people were when it came to what the Supreme Court was designed for. It was not designed for use as a political football, but rather it was an arena where laws were interpreted—not made. You cannot read his dissents without coming away with the conclusion that he was immensely frustrated with the fact that the courts—not the people/states—were deciding crucial policy and cultural issues. Indeed, those issues should be left to the states and the courts should be a secondary or even tertiary concern. This is not to say conservatives should care less about who sits on the bench, but that the legislators they’ve elected should feel the pressure of governing, providing ordered liberty, and guarding their constitutional rights. It was not the courts job to buttress the encroachment of liberalism. It was the job of statesmen representing their people as servant leaders. 

The President may indeed get his nomination and Republicans may indeed fold on their promise of no hearings and no votes. But even if they do, let us hope the next SCOTUS continues in the “spirit of Scalia” even if they cannot have his pen and wit alongside it.