Gerson: Replacing Scalia involves epic skirmish

Michael Gerson
Michael Gerson

WASHINGTON – A public official can fight to expand the power and prerogatives of his office with skill and cunning. Defending the prerogatives of other officials, in another branch of government, is done only out of principle. Justice Antonin Scalia spent a career in America's judicial aristocracy defending representative democracy. He wanted courts to play a limited, supportive role, interpreting texts produced by representatives of the people. If new meanings are required — as they often are, in a varied, progressing country — then it is the people who need to provide them.

"Do you think the American people would ever have ratified" the Constitution, Scalia asked, if they had known that "the meaning of this document shall be whatever a majority of the Supreme Court says it is?" On issues such as abortion rights, he said that judges "vote on the basis of what they feel," which amounts to "the destruction of our democratic system."

The reaction of judges who enjoy a starring role in American government was, and is, negative. Which is unsurprising. Progressive judges have an interest in making their private moral intuitions the law of the land, without the inconvenience of having to persuade their fellow citizens. If judicial decision-making involves the interpretation of evolving standards, this gives tremendous influence to the interpreters. Progressives generally like this approach because it has secured progressive outcomes. But, as a political theory, there is nothing particularly liberal about it because it grants immense political power to a small self-serving, self-dealing elite.

Here is Scalia: "The non-originalist judge who decides what the modern Constitution ought to mean — perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require — escapes the application of any clear standard, by which we may conclude that he is a charlatan."

In exposing this scheme, Scalia — the strongest of Catholics — was thoroughly Protestant in his disposition. He viewed the advocates of a "living Constitution" in much the same way that Martin Luther viewed the Roman Catholic priesthood — as a class maintaining its power through mystification and the claim that only it can interpret sacred texts. Scalia argued for the plain meaning of texts, available to everyday people. A priesthood of citizens. And Scalia did spark something of a reformation, inspiring a generation of judicial originalists who have gained serious influence in academia and on the bench.

The question "Who judges?" is also the question "Who rules?" Scalia, the brightest judicial light of his time, wanted the representative branches to rule.

And so how is the legislative branch likely to respond to a Supreme Court vacancy as consequential as the one Scalia's death creates? Not well.

In the plain meaning of the text of the Constitution, appointing "judges of the Supreme Court" is a presidential power. And Alexander Hamilton, in Federalist 76, asserts broad presidential discretion in exercising this authority and sets out narrow grounds for the Senate to reject nominees.

All of which now means little. The nomination system is broken beyond recognition. And yes, it is Democrats who started it. The nomination of Robert Bork to the Supreme Court during the Reagan years set the pattern — in ideologically decisive nominations — of war-room style campaigns involving opposition research and public defamation. As far as I can tell, there is no going back.

President Obama's task is further complicated by exceptionally bad relations with Congress. Most Republican leaders can (and do) relate stories of snubs and disdainful treatment by the president. He has no chits of goodwill to cash.

And the political pressures on Senate Majority Leader Mitch McConnell all go in one direction: to delay and delay, without even a Judiciary Committee vote. If McConnell allows a decisive change in the Supreme Court on his watch, conservatives will ask: What good is having a Senate majority anyway? The revolt against McConnell would be broad, and include much of the Republican presidential field.

Obama will attempt to change this dynamic with an appealing and/or exceptionally qualified nominee. Could the Iowan leader of the Judiciary Committee, Chuck Grassley, really oppose an Iowan? Could the Senate refuse someone who it approved for a lower court by 97-0?

It will not matter. In part because the Supreme Court has assumed such a large role in American life, a decisive shift in its ideological composition would be an event of massive political consequence. And no one will be bringing the Federalist Papers to this knife fight.

Michael Gerson is a columnist for The Washington Post.