Scalia on Congress & SCOTUS

While I was reading Scalia and Dworkin’s discussion on Supreme Court nominations, I found myself trying to understand how Scalia would feel about the current Supreme Court nomination predicament left by his void. Scalia explicitly discusses the “new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution” (47).   Scalia explains that due to the new American belief in The Living Constitution, “if the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants, the appointment and confirmation process will see to that” (47).  Thus, with the notion of The Living Constitution, Scalia emphasizes that the people now have too much power, as the appointment process allows us to choose someone who can alter the Constitution to fit the wishes of the majority.  As Dworkin acknowledges, Scalia believes moral reading gives the people “too much power, because it politicizes the appointment of Supreme Court justices and makes it more likely that justices will be appointed who reflect the changing moods of the majority (126).  Thus, Scalia would seem to argue that we ought not politicize our nominations of justices, and we must avoid choosing justices who morally read the Constitution in a way that would allow justices to interpret the Constitution in the way they see fit and the majority sees fit.

Yet, I found myself asking how would Scalia feel about our current split 4-4 Court and how he would feel about the fact that Congress refuses to consider any Supreme Court nominees.  We ought not select and confirm judges based on which judge’s evolutionary interpretation of the Constitution can best benefit the majority, yet these sentiments do not give us insight into how Scalia would approach a situation in which one party refuses to even consider a judicial candidate.  Lucky for me, as I was reading a newsletter from the Washington Post this morning, I found this article.  The two authors of this article, Newton N. Minow and Abner J. Mikva, both knew Justice Scalia personally from serving with him on the U.S. Court of Appeals for the District of Columbia.  They both believe, and I do as well, that Scalia would “be disturbed” by Congress’ “failure to follow the words of the Constitution.”  While Scalia adamantly believes that appointing judges based on the will of the majority to interpret the Constitution in a certain light is counter to our ideals, I also believe that Scalia would be discontented with our lack of ability to follow the process of judicial nomination that is plainly laid out in the Constitution.  What do you think Scalia would think about the predicament in which we currently find ourselves? Do you think that Scalia would find it worse if we appointed a justice who “reflect[s] the changing moods of the majority” or would it be worse if we do not appoint a justice at all?