Originalists Wouldn’t Delay

(The Washington Post) —

A controversy has erupted over whether the Senate should consider anyone President Obama nominates to the Supreme Court to replace my friend Antonin Scalia, who died unexpectedly Saturday. Senate Majority Leader Mitch McConnell (R-Kentucky), Judiciary Committee Chairman Chuck Grassley (R-Iowa) and others argue that, because it’s an election year, the Senate should delay confirming a new justice in order to “defer to the American people.”

A true “originalist” would reject the Republican position.

After Scalia lost a bet to me in 2010 over whether the Affordable Care Act would be enacted, we shared many meals and arguments. He educated me about his judicial philosophy of “originalism.” This is an approach to constitutional interpretation that emphasizes that understanding the Constitution’s capacious phrases, such as “due process of law” and “equal protection of the laws,” requires examining what those phrases meant when they were written. Originalism is a quintessentially backward-looking doctrine that gives respect to those present “at creation.”

On the current question, an originalist would begin by looking at what the Constitution says about choosing a Supreme Court justice. An originalist would note that the framers clearly wanted the court to be insulated from the people’s wishes. To put them above the clash of politics, the Constitution gave justices lifetime appointments, to which they were nominated, not elected. Furthermore, justices were nominated by a president who was elected by an Electoral College — not the American public – and confirmed by a Senate elected, at the framing, by state legislatures — again, not the public. Originalism clearly argues against deferring to public opinion on the composition of the Supreme Court.

The history of the founding generation itself also makes clear that the framers wanted the Supreme Court nomination and confirmation process not to depend upon the outcome of an election.

Recall the United States’ greatest chief justice, John Marshall. In the bitter 1800 election, Federalist John Adams narrowly lost to Thomas Jefferson of the Democratic-Republicans. After the election, but before Jefferson’s March 1801 inauguration, the Federalists pushed through a new judiciary act reorganizing the Supreme Court. The sitting chief justice — the country’s third — Oliver Ellsworth, was in poor health. Adams wanted John Jay, the first chief justice, to replace him, but Jay refused because he felt the position lacked importance and dignity.

With less than six weeks left in his term, Adams then nominated Marshall, his secretary of state and a Federalist. After balking initially, the Senate confirmed Marshall on Jan. 27, 1801. He was sworn in as chief justice on Feb. 4, one month before the change in administration.

Jefferson was livid. But he was respectful of the fact that the Constitution gave the president and Senate authority to nominate and confirm justices while in office. He never tried to oust Marshall, despite complaining bitterly about “twistifications” in Marshall’s many landmark decisions.

Thus, the Republican claim that we should give the American people a chance to speak on Scalia’s replacement is not consistent with Scalia’s originalism.


Ezekiel J. Emanuel is vice provost for global initiatives at the University of Pennsylvania.

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