A Supreme Mouthing Off

Antonin Scalia has a few tings to say:

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.

Scalia, who has been mentioned as a possible chief justice nominee should Chief Justice William Rehnquist retire, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted.

Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process.

"Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution," said Scalia, who was appointed to the court by President Reagan in 1986.

He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren's political background. Warren was governor of California and the Republican vice presidential nominee in 1948.

"You have a chief justice who was a governor, a policy-maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it's hard not to follow," Scalia said, in response to a question from the audience.

Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law.

"If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us," he said, explaining that's why senators increasingly probe nominees for their personal views on positions such as abortion.

"When we are in that mode, you realize we have rendered the Constitution useless," Scalia said.

Scalia often gets criticized for not living up to the consitutional ideals he espouses. Sometimes, it is argued, he will impose his personal policy preferences just like every other Supreme Court justice. Maybe that is true, maybe it isn't. But even if you come to the conclusion that Scalia does falter sometimes, isn't it better to have justices that are inconsistently right as opposed to justices that are consistently wrong?