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Process for filling Supreme Court vacancies damaged, appeals judge says

| Wednesday, March 23, 2016, 11:00 p.m.
Guy Wathen | Tribune-Review
Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit gives the fifth annual Kerr Lecture at Carnegie Mellon University in Oakland on Wednesday, March 23, 2016.
Guy Wathen | Tribune-Review
Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit gives the fifth annual Kerr Lecture at Carnegie Mellon University in Oakland on Wednesday, March 23, 2016.
Guy Wathen | Tribune-Review
Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit gives the fifth annual Kerr Lecture at Carnegie Mellon University in Oakland on Wednesday, March 23, 2016.

The late Supreme Court Justice Antonin Scalia believed the meaning of the Constitution, based on what it says and the context in which it says it, should be the basis for Supreme Court decisions, an appellate judge said Wednesday during a lecture at Carnegie Mellon University.

By comparison, decisions based only on court precedents or legislative “intent” of laws raise the possibility of the Constitution meaning whatever a majority of the Supreme Court wants it to mean, and that results in the broken judicial confirmation system the country has today, said Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit.

Instead of looking for someone who understands what the Constitution means, the search is for a “judge who agrees with the majority as to what it should mean,” he said.

President Obama's nominee, Judge Merrick Garland, serves on the same court as Ginsburg. While he briefly discussed his colleague during the lecture, he said afterward that he can't comment on Garland's fitness to serve on the Supreme Court or the Senate Republicans' decision to not hold a nomination hearing.

The nomination process was severely damaged in 1987 with the Democrats pillorying nominee Robert Bork, he said. That began a cycle of retaliations between the two sides during subsequent nominations, he said.

“I don't see any way to stop it,” Ginsburg said.

Garland seems like the nominee least likely to provoke either side, and he was surprised by the Senate's 76-23 vote to confirm him to the D.C. Circuit.

“How could 23 people oppose him?” Ginsburg asked. He said he learned the votes were a protest over a separate matter.

News reports at the time and the Congressional Record show that the fight was over the size of the circuit court.

A 1993 Supreme Court decision provides a good example of how Scalia's beliefs led him to dissent from the majority. The majority said that trading a gun for drugs violates a law that makes it a felony to use a firearm in connection with a drug crime.

Scalia said the clear meaning of the law is using a gun as a weapon, not broader interpretations, such as using it to trade or even to scratch your head.

“When someone asks ‘Do you use a cane?' he is not inquiring whether you have your grandfather's silver handled walking stick on display in the hall; he wants to know whether you walk with a cane,” Scalia wrote in his dissent.

While the majority of justices didn't embrace Scalia's habitual search for the original meaning of laws and the Constitution, he made it impossible for them to ignore it, Ginsburg said.

“He made the court engage in the dialogue,” Ginsburg said.

Brian Bowling is a Tribune-Review staff writer.

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