President Trump is expected to announce his choice to replace the late Supreme Court Justice Antonin Scalia Tuesday night.
Many Senate Democrats have already promised to oppose Trump’s nominee, regardless of who it is, a sign that a bruising confirmation battle lies ahead.
Conservatives, on the other hand, are anxious to see if Trump picks someone in the mold of the iconic Scalia.
As someone who has read every Supreme Court opinion Justice Scalia wrote and highlighted the best of them in "Scalia’s Court: A Legacy of Landmark Opinions and Dissents," I urge people to consider the following ideas when evaluating Trump’s nominee:
Parchment doesn’t breathe. Unlike many of his colleagues who espoused the notion of a “living Constitution,” Justice Scalia said he liked his constitutions dead. The whole point of having a written charter, after all, was to bind future generations who might be tempted to toss aside important rights and responsibilities when the political winds shift.
Consider, for example, the death penalty. Although capital punishment is expressly sanctioned in the Constitution, a handful of recent and current Supreme Court justices have argued that it violates the Constitution.
This is madness.
As Scalia said, Congress and the state legislatures are free to prohibit capital punishment if they like, but judges cannot forbid forever that which the Constitution itself prescribes. Whomever Trump picks to fill Scalia’s seat should reject the idea that our founding charter is a living, breathing document.
Words have meaning. Justice Scalia was a textualist, but he was not, contrary to popular opinion, a strict constructionist. He believed that the words of a law should be interpreted neither liberally nor strictly, but reasonably; that is, according to the ordinary meaning that would have made sense to the lawmakers who adopted the law and to the public who would have been subjected to it.
This seems obvious today, but as Justice Elena Kagan said of Scalia, “His views on interpreting texts have changed the way all of us think and talk about the law.”
Unfortunately, even though Scalia’s colleagues learned to start with the text, they didn’t always finish with it. In two separate opinions upholding ObamaCare, for example, Chief Justice John Roberts ignored the clear meaning of the law’s terms in favor of interpretations he deemed more consistent with the law’s purpose.
His contortions prompted Scalia to write, “Let us not forget…why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.” Scalia’s successor must be a textualist in thoughts, words, and deeds.
Protect fundamental rights, especially when they are unpopular. Justice Scalia had the courage of his convictions. Time and time again, he defended the constitutional rights of accused criminals and terrorists. “Solving unsolved crimes is a noble objective,” he wrote in one memorable Fourth Amendment case, “but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”
Scalia said the First Amendment protects the right of protesters to burn the American flag, a position that bothered many conservatives. He said the First Amendment also guarantees the right of corporations, political parties, and individuals to contribute money to political candidates, a position that bothered many liberals.
In today’s hyper-partisan political environment, Trump’s nominee must be willing to stand up for constitutional rights, even when they are unpopular.
Finally, don’t be boring. The late Christopher Hitchens said his mother once warned him, “The one unforgiveable sin is to be boring.”
If this is true, Scalia really was a saint. Scalia brought life and laughter to oral arguments and wielded a pen like very few justices before him. One progressive law professor called him “the best judicial stylist since Oliver Wendell Holmes.”
Scalia seemed entertaining by nature, but his style served a serious purpose: people remembered his arguments.
As two critics once noted, Scalia’s memorable words articulated a vision that “when placed in the enduring form of a written opinion, has the potential to shape doctrines and decisions in the near and distant future.”
If Trump chooses wisely, the future is now.
Kevin Ring is a former counsel on the Senate Judiciary Committee, and the author of Scalia’s Court: A Legacy of Landmark Opinions and Dissents. He now serves as president of FAMM, a national sentencing reform organization in Washington, DC.