Ghosts of hearings past

C-SPAN is hardly known for its dramatic programming, but viewers this week were treated with coverage of the confirmation hearings of Supreme Court nominee Neil Gorsuch.

By most objective accounts, Gorsuch sailed through the hearings with an affable and unflappable demeanor to complement his considerable and demonstrable legal qualifications.

He’s now virtually a cinch to be given a SCOTUS robe and seat, and American jurisprudence will be the better for it—despite wailing to the contrary that almost literally was plucked from the “sky is falling” worries Democrats expressed 30 years ago at the Antonin Scalia hearings.

In a play off the old advertising campaign “Is it live, or is it Memorex?” which showed an Ella Fitzgerald high note shattering a wine glass, guess whether the following statement was uttered this week or in 1986: “There have been at least some reports that [overturning Roe v. Wade] was one of the considerations in your nomination.”

If your gut told you that the more things change, the more they stay the same, congratulations! That sentence is straight from the Scalia hearing transcripts.

Here’s the exchange that preceded it, led by Sen. Edward Kennedy, who barely muttered a greeting before tossing his first mortar: “if you were confirmed, do you expect to overrule the Roe v. Wade?”

A clearly taken aback Scalia replied, “Excuse me?”

The Massachusetts senator rephrased slightly. “Do you expect to overrule the Roe v. Wade Supreme Court Decision if you are confirmed?” he asked.

Like most nominees before and since, Scalia explained it would be improper to answer that question, and elaborated. “Let us assume that I have people before me arguing to do it or not to do it,” he said. “I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that.

“I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter,” Scalia said.

It is clearly unwise to prejudge publicly any case that might ultimately come before the court, especially one so contentiously debated in legal contexts. But special interests consider wisdom and common sense mortal enemies if either threatens their agenda.

So lobby servant Kennedy pressed on. “Do you believe in [the concept of stare decisis]? What is it going to take to overrule an existing Supreme Court decision?” he asked.

“As you know, Senator,” Scalia answered, “they are sometimes overruled.”

“I am interested in your view,” Kennedy continued.

“My view is that they are sometimes overruled,” Scalia said, and then added, “I will not say I will never overrule prior Supreme Court precedent.”

Thirty years hence, the nominee selected to succeed Scalia faced the same opposition from the same special interest, which hurled the same mud hoping to smear another imminently qualified jurist. But Gorsuch was definitive and defiant about any expressed White House litmus test regarding abortion tainting his integrity as a nominee.

Had he been asked by President Donald Trump to overturn Roe v. Wade, Gorsuch said, “I would have walked out the door.”

Sen. Kennedy is long gone, but some faces still have recurring roles in this three-decades-later sequel.

Sen. Patrick Leahy posited this contemplative query to Scalia in 1986: “Does the word ‘justice’ have content to you?”

In 2017, here’s one of his probing questions to Gorsuch: “Would the president have the authority to ban all Jews from America?”

Then-Sen. Joe Biden was also in the judiciary committee hearings for Scalia, asking about whether the nominee subscribed to the view of the Constitution as a “living” document.

“What I think,” Scalia responded, “is that the Constitution is obviously not meant to be evolvable so easily that in effect a court of nine judges can treat it as though it is a bring-along-with-me statute and fill it up with whatever content the current times seem to require.”

And yet judicial activism produces that precise result, which is both undemocratic and divisive. It’s why partisans can praise Roe v. Wade as “settled law” in one breath and deny Citizens United as such in the next.

Sen. Diane Feinstein, in trying to pry an abortion-rights answer out of Gorsuch, went so far as to worry aloud that the “law” as it exists “could be struck down with one decision.” Her fears exist because that “law” was foisted on the nation with one decision, rather than legislated through the democratic process or added to the Constitution in the amendment process.

Special interests that want to live by the gavel can also die by the gavel. After all these decades, Roe v. Wade‘s legal doctrine remains unsettled for the very reason that it was poorly adjudicated to begin with.

As Scalia often opined, justices are poorly equipped to be lawmakers. We are fortunate that lawmakers acting as mouthpieces for special interests in confirmation hearings are equally unfit to be Supreme Court justices.


Mr. Constitution

Allegorical black crepe is hanging over Independence Hall this week. The sudden and unexpected passing of U.S. Supreme Court Justice Antonin Scalia has thrown original-intent supporters everywhere into mourning.

Self-described as an “originalist,” Scalia draped himself in constitutional fidelity every time he donned his official black robe. There was no truer friend of self-government, as executed through sovereign states under a federal charter, and no bigger champion of liberty as eloquently expressed—and enumerated and reserved—in our Bill of Rights.

At the time of his death, Scalia had served on the Supreme Court bench for 30 years and, on par with his nearly eight decades of life, leaves a legacy of legal leadership in which he consistently performed at the top tier.

A teenage friend characterized his brilliance suitably. Scalia was, he said, “way above everyone else.”

He was class valedictorian both at Xavier High School in Manhattan and at Georgetown University, and graduated magna cum laude from Harvard Law School. Appointed by President Ronald Reagan in 1986, Scalia was a prolific, powerful and persuasive writer. No Supreme Court justice in history wrote more concurring opinions, and only two wrote more dissents.

He and his wife were married for 55 years, and it’s unclear how many, if any, justices exceeded Scalia’s brood of nine children.

In tribute to what President Obama called a “towering figure” in American jurisprudence, here’s a NinoDigest (named in honor of his famous Ninogram memos to other justices) of some of his memorable, intellectual and amusing remarks.

Regarding his adherence to textualism, or taking the words in the Constitution and statutes at their meaning, and the inherent silliness of making plain language subject to political modification:

“What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”

On the notion that the court inherently weakens the republic, upsets the constitutional balance of powers, and robs the people of liberty when it usurps legislative authority and engages in lawmaking:

“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

“Every time the Supreme Court defines another right in the Constitution, it reduces the scope of democratic debate.”

“Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

His personal favorite opening line in an opinion:

“This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.'”

Scalia was often critical of the court’s exceedingly poor credentials for enacting or shaping social policy, rather than sticking to ruling on fine legal points.

He highlighted the shocking disparity between the robed jurists and the population at large in his masterful dissent in the 2015 same-sex marriage case, Obergefell v. Hodges.

“Judges are selected precisely for their skill as lawyers … . Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).

“Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. … And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Back in 1990, famed liberal law professor and legal scholar Laurence Tribe remarked upon Scalia’s first few years on the big league bench, during which he had already developed a reputation as an impassioned participant in oral arguments and an exceptional legal writer.

“There is no question Scalia is brilliant,” Tribe said. “What remains to be seen is if he is wise.”

All these years later, now that he belongs to the ages, we have our satisfying answer.

Scalia’s wisdom, wit and way with words will be missed—and not soon replaced, if ever.