At Huffington Post, Scott Gerber: Justice Scalia and a Supreme Court ‘Happily Filled’.  He argues:

In honor of Justice Scalia, the nation’s most celebrated proponent of the historical approach to constitutional interpretation known as “originalism,” it is important to point out that partisan usage of the appointment process is not what the original understanding of the Constitution demands.

Instead, the original understanding is for, to quote James Madison, “a bench happily filled” with the esteemed likes of “Wythe, Blair, and Pendleton”: leading jurists of Madison’s day. The debates during the Constitutional Convention of 1787 were silent on the criteria for appointment precisely because the delegates assumed that the basis of selection would be merit. Even Alexander Hamilton, who saw a limited role for the Senate in the appointment process, believed that the Senate could — and should — reject a nominee who was lacking in objective merit. “Thus it could hardly happen,” Hamilton wrote in The Federalist Papers, “that the majority of the Senate would feel any other complacency toward the object of an appointment than such as the appearance of merit might inspire and the proofs of the want of it destroy.”

And in conclusion:

The most fitting tribute that President Obama and the Republicans can therefore pay to Justice Scalia is to put aside partisan politics and work together to appoint a successor of comparable merit. The Constitution requires no less.

I sort of agree.  But first, a quibble: the Constitution does not require this.  It may be what the Framers expected, and is likely what they hoped for.  However, the text of the Constitution (which is what Justice Scalia’s originalism finds decisive) has no such requirement.  The Constitution does not enact the Framers’ hopes, unanchored to the text (else we would, for a start, have no political parties).  And, it’s perhaps worth pointing out, the Supreme Court almost immediately became a political football, despite the Framers’ hopes.  For example, the Jeffersonian Republicans in Congress in effect eliminated the Court’s entire 1802 term in the Judiciary Act of 1802 because they did not want Federalist Justices like John Marshall deciding cases.

Nonetheless, Professor Gerber’s idea is a good one.  But how would it work in practice?  The Court has made itself a political actor.  It’s naive to think that qualifications matter more than politics on today’s court.  Ask a liberal, would you rather have a distinguished conservative or a less-qualified  liberal, and you know the answer.  The same goes for any conservative asked to pick between a distinguished liberal and a less qualified conservative.  And they are right to think that way.  Plus, there are plenty of well qualified conservatives and well qualified liberals — how to pick between them?

The only way this kind of nomination strategy will work is if it seeks to move the Court away from politics.  How can that be done?  I think there are two parts.  First,  we need a Court that applies an objective law, not a living Constitution that depends principally on what Justices think it is best social policy.  The latter is inevitably political.  The former offers at least some hope of escaping politics.  Thus, a nominee should have a commitment to originalism, which is (at least in theory) objective.

But many people doubt that originalism is in fact objective, because liberals will read the history to support their political instincts and conservatives will read it to support theirs.  This is a serious concern.  The additional quality needed for compromise is a very strong commitment to judicial restraint.  That is, the candidate should believe that the Court should interfere with the political branches only when the objective original meaning is very clear.  Thus both sides would stand to gain some and lose some in terms of political outcomes.

Are there candidates that might fit this description?  Here are two possibilities:

— Judge J. Harvie Wilkinson of the Fourth Circuit, author of Cosmic Constitutional Theory, a powerful call for judicial restraint.  He is critical of Justice Scalia’s version of originalism, especially criticizing the Heller and McDonald gun control cases.  Ultimately, though, I think he believes the Constitution has some objective meaning based on its text and history, and would enforce it in very clear cases (but otherwise defer to the political branches and the states).

— Judge Jeffrey Sutton of the Sixth Circuit, a former Scalia clerk who upheld Obamacare against the charge that it exceeded Congress’ powers, principally on grounds of judicial restraint.  (He also voted to reject constitutional claims to same-sex marriage, again on grounds of judicial restraint.)

True, both were appointed to their existing positions by Republican presidents.  But they would not give conservatives everything they want on the Court because of their commitment to judicial restraint.  And there is no doubt about their “merit,” in Professor Gerber’s meaning.  Thus they (or others like them) are the most plausible compromise candidates.  A nomination in this direction would be a strong move toward a less political Court.

(To be clear, I’m not inclined to a Wilkinson/Sutton-style judicial restraint, and I’ve been critical of Judge Wilkinson’s book in the past.  But I don’t see how anything else could be the basis of a compromise.  And I don’t really want the job anyway.)

Michael D. Ramsey
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