The Next Justice? It’s Not Up to Us

tags: Scalia

Garry Wills is Professor of History Emeritus at ­Northwestern. He is the author, most recently, of The Future of the Catholic Church with Pope Francis. (February 2016)

No sooner was Antonin Scalia dead than Republicans said that his seat should not be filled before the election of a new president. Senator Mitch McConnell said this will let the American people “have a voice” in who the new justice will be. Senator Kelly Ayotte said “Americans deserve an opportunity to weigh in” on the matter. And Senator Ted Cruz, the presidential candidate, Senate Judiciary Committee member, and self-styled guardian of the Constitution, wrote on Twitter, “We owe it to him, [Scalia] & the Nation, for the Senate to ensure that the next President names his replacement.” That is, we owe it to the archetypal originalist, where the Constitution is concerned, to ignore and defy the original Constitution.

One thing the framers of the Constitution set out to prevent was a popular say in who should be a Supreme Court justice. The aim of the document was to ensure there would be an independent judiciary—independent of Congress (by ensuring justices’ salaries), independent of changing administrations (by granting them life tenure), and not subject to popular election. This ideal could not be perfectly reached, and changes in the Constitution have made it even harder to attain. But those who profess an absolute devotion to the Constitution should at least pay it some lip service.

If the framers wanted to let the people “have a say” and “weigh in,” they would have made the appointment or confirmation of the justices come from the one directly democratic part of the system—the popularly-elected and short-termed members of the House of Representatives, a body that was designed to read the pulse of the people in a direct and frequent way. Instead, they gave the choice of justices a double baffle of insulation from the public. The president alone has the appointment power—and remember that the president was originally not elected directly by the people but indirectly through electors. Then a second filter was provided by confirmation in the Senate—and the Senate was originally not directly elected but indirectly by state legislatures....

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