Commentary on judges: Seek 'little Scalias'
The left has lately been in a panic at the realization that President Donald Trump has so many vacancies to fill on the federal bench, a panic hardly abated by conservative proposals to add a lot more seats. The fear is that Trump will appoint lots of “little Scalias” — a reference to Justice Antonin Scalia, who died in 2016 and was succeeded on the Supreme Court this year by Neil Gorsuch.
I'm no fan of court-packing, and I've long believed that our method for selecting federal judges is absurd. But it's the method we have, and elections, as they say, have consequences; one of them is that the president gets to nominate lots of judges. So if a horde of little Scalias indeed looms on the horizon, it might be useful to consider exactly what so curious a creature is.
Let's dispense with the somewhat illiberal reduction of potential jurists to their rulings, the notion that a good judge is a judge who agrees with my side. I'm not suggesting that it makes no difference how cases are decided. But far more important should be the quality of the judge's mind. How does the potential judge reason? What principles would the nominee apply, and why?
Ah, but how do we get to know a judge's mind, other than by examining concrete results? In Scalia's case, we can peruse “Scalia Speaks,” the recently published volume of the late justice's speeches. The book is a fascinating look into the thinking of the most influential justice of recent times.
He summarizes his guiding principle simply: The constitutional originalist gives the document's words “the meaning they were understood to have when the people adopted them.” This isn't some sort of ideological dodge. It's related, rather, to Scalia's view of lawyering. In another speech, he tells us what he admires about Abraham Lincoln: “how closely Lincoln's speeches hewed to the traditional tools of the American lawyer — the importance of precedent, the absolute requirement that one be honest and forthright in application of one's principles, and the value of text and history.” The compliment is independent of what positions Lincoln was advocating for; it is the form of Lincoln's argument that he extolls.
Scalia valued a form of judicial reasoning tied to what seemed to him the concrete moorings of text and history and precedent. Although such methodology is popularly derided, most judges at least pay it lip service. Indeed, a respect for all three is a prescriptive norm of judging.
Is constitutional reasoning different? Most scholars today would say yes, but Scalia famously said no. Several times in the speeches included in the book, he criticizes colleagues who believe that their role is to write contemporary moral standards into constitutional law. But that's not what Scalia believes the judge who finds the law immoral should do: “His proper course is to resign from the bench, and perhaps lead a revolution.”
Liberal presidents should not be trying to fill the courts with little lefties, and conservative presidents should not be trying to fill the courts with little righties. Rather, both should be seeking jurists who care about craft and principle, whose reasoning is sharp and transparent, and whose sense of history and process never allows them to forget the norms of their profession. They should, in short, be searching for little Scalias.
Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.