The Scalia approach is not new. It's been the approach of many judges, including some liberal ones. (In fact, there was a time when liberal justices used what I'm referring to as the Scalia approach to try to stop conservative judicial activism on the Supreme Court.) Scalia believed that judges should stick to the actual words used in the Constitution or statutes and try to ascertain the meaning of the drafters when faced with ambiguity. When this doesn't answer the question posed to the court, Scalia's philosophy mandates that the issue be deferred to democratically-elected legislative bodies.
My liberal friends reject the Scalia approach. They argue that judges shouldn't be confined to the actual words of the constitution or statutes or care about what the drafters intended when putting those words to paper. After all, when it comes to the Constitution, how do we know what the Founders were thinking when they drafted the Constitution more than 200 years ago? They argue that the Constitution is a "living document" and should be reinterpreted to reflect changing society.
|The Late Justice Antonin Scalia|
When I ask my liberal friends what approach they would utilize to restrain judges from imposing their views on society, they have no answer. Their view of jurisprudence is that legislators are stupid and that it's perfectly okay for really smart, liberal judges to impose their views on society through the guise of interpretation. So if judges want a constitutional right to abortion on demand or same sex marriage, the fact that the text of the Constitution and its history clearly mandates neither is no bar to my liberal friends. Judges can just "find" such rights in the language. Clever fellows those liberals judges are - always able to "find" things that others of us can't see. Of course, when judges choose to take a conservative political position such as striking down a law limiting campaign contributions, liberals suddenly become champion of judicial restraint and legislative deference. Liberals are flexible that way.
On those aforementioned issues, abortion and same sex marriage, Scalia's approach would be to follow the Constitution by deferring the issue state legislative bodies. If state legislatures want same sex marriage and abortion on demand, they are perfectly free to impose those policies within their jurisdiction. Many of course would and some wouldn't. That's the way our system of government works.
The best issue for illustrating the problem with the judicial activist approach is the death penalty. The Constitution and the amendments contain three references to capitol punishment. It is absolutely clear from the language and the history that the Founders never intended to do away with the death penalty. Yet some of my liberal friends who support judicial activism believe that unelected judges should declare that the death penalty is unconstitutional for being "cruel and unusual," a punishment prohibited by the 8th Amendment. Why? Because society has "evolved" on the death penalty.
If society has "evolved" who better to recognize that evolution than democratically-elected legislators? After all, states are not mandated to have the death penalty. Many have done away with it in their jurisdictions. They have every right to do that. It is nonsensical that my liberal friends think that unelected federal judges serving life terms, as elite group of people as they come, are better gauges of the public's sentiment than representatives of the people who regularly have to win re-election.
As thoughts turn from Scalia's passing to his replacement, the Democrats are screaming that the Republican-controlled Senate has indicated it will block the President's appointment to the Court. It's a laughable complaint. If the situation were reversed and a Republican President nominated a replacement for a very liberal justice in an election year, an appointment that would tip the balance of numerous issues decided by 5-4 votes, does anyone seriously think that a Democratic-controlled Senate would confirm his selection? Of course not.
The fact is the Democrats have greatly politicized the United States Supreme Court, turning it into a super legislature in which their justice adopts their preferred liberal policies through the guise of interpreting the law. So to expect Republicans to look the other way about the political views of an Obama appointee, when that person can be expected to impose his or her political views through the guise of interpretation is, well, absurd.
Let's not forget that while Democrats complain that the Republicans have politicized the confirmation of a Scalia replacement, it was Democrats who were the ones that started that too. Prior to 1987, most nominations to the Supreme Court focused on qualifications of the appointee. Then in 1987, the Democrats launched a no holds barred attack on the eminently-qualified U.S. Court of Appeals Judge Robert Bork. The Democrats' reprehensible approach to the Bork nomination was escalated to a very personal level in the attempted "high-tech lynching" of Clarence Thomas. Opponents through Thomas' trash looking for dirt and also liberal groups ran ads asking that people come forward to dish dirt on Thomas. While the Democrats could have made a strong case that Thomas lacked the qualifications for the Court, they instead went after him personally. Reprehensible.
All this is irrelevant though as Obama's appointment to the Supreme Court will be DOA. (Resist inserting Scalia joke here.) But the one thing his death will do is galvanize both sides which now have irrefutable evidence that this presidential election, more than any in recent times, is critical to the future of the Supreme Court.