What Antonin Scalia Thought About Politicizing The Supreme Court Nomination Process

CREDIT: AP Photo/Luis M. Alvarez

Supreme Court Justice Antonin Scalia addresses the ACC America, Association of Corporate Counsel Washington Metropolitan (WMACCA) Chapter, Thursday, Jan. 19, 2012, in McLean, Va.

Supreme Court Justice Antonin Scalia died suddenly from natural causes on Saturday, opening up an unexpected vacancy on the bench of the highest court in the country.

Instead of a substantive debate about who the next justice should be, however, Scalia’s death set off a strictly political debate about whether president Obama — who has 11 months left in office — should be allowed to begin the process of filling the open seat. Republican presidential candidates said no, and Republican Senate leadership immediately pledged to block any Obama-led effort to replace Scalia, no matter who the nominee. Sen. Ted Cruz (R-TX) went even further in the politicization of Scalia’s death, suggesting on Sunday that the 2016 presidential election serve as “a referendum on the Supreme Court.”

With all this politicization, it’s hard not to wonder: What would Justice Scalia think about the state of conversation over his vacant seat, if he were alive to see it?

Given his previous statements the subject, it seems likely he would expect it — but also frown upon it. Indeed, Scalia himself lamented how the appointment process for Supreme Court justices had become so political during his lifetime, saying he “wouldn’t want to go through it” again in present day.

Scalia was not shy about his disdain for the political nature of the nomination process. Scalia himself was confirmed without a single vote against him in 1986.

“One shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court,” Scalia said in a 2004 speech to the Federalist Society. “The lesson is, in a truly democratic society – or at least the one in America – one way or another the people will have their say on significant social policy.”

However, Scalia also warned that the appointment process would inevitably become more politicized if Justices began making decision of more consequence to American society — particularly if those decision were about “moral questions,” like say, whether marriage should be an equal institution for people of all sexes.

“If judges are routinely providing the society’s definitive answers to moral questions on which there is ample room for debate … then judges will be made politically accountable,” Scalia said.

That was more than 10 years ago, but Scalia maintained his distaste for the injection of politics into the Supreme Court nomination and confirmation processes.

“I am not happy about the intrusion of politics into the judicial appointment process,” Scalia said in 2010. But, he said, considering the Supreme Court’s propensity for “deciding the nation’s morals,” Americans better get used to it, he said.

“As long as [the constitution] is subject to revision,” he said, “you should get used to controversial and absurd political theater when a person is nominated.”