Writing for the New Republic earlier this year, Eric Segall revealed his thoughts on why replacing Justice Antonin Scalia on the Supreme Court would prove so difficult. Despite common references to the nation’s highest-ranking jurists as dispassionate analysts or mere “umpires,” Segall makes clear that in his opinion, Justices and those seeking the position are partisan players like any other politician:
Despite an avalanche of commentary in the popular press, social media, academics circles, and cable news shows on the implications of Scalia’s death, few are willing to say out loud what should now be patently obvious: We are not replacing a judge bound in any real sense by the law but an important political official who happens to sit in a courtroom. This person makes decisions not based strictly on legal interpretations but on his values writ large.
The most cited legal scholar of our time, Judge Richard Posner, has an eloquent way of making this same point. He has said that choosing between different results in hard constitutional law cases is like choosing between margaritas and cosmopolitans. Taste, not logic, dictates the choice.
Naturally, this helps to explain the Obama Administration’s urgency in nominating their preferred choice, as well as the Republican-controlled Senate’s refusal to hold confirmation hearings:
Given that this is an election year and the end of a two-term Presidency, the stakes for the American people could not be higher. If the goal of the process was to simply find an outstanding lawyer or judge, the process would already be under way.
But the role of Supreme Court Justice is not to interpret texts and make legal decisions but to make hard value choices on the most difficult moral and politically charged issues of our day.
That’s why I believe our two major political parties owe it to the American people to do their best to find a replacement for Justice Scalia who serves the interests of their respective constituencies.
I applaud Mr. Segall for stating so plainly what is often hinted at or fashioned into a pejorative. “Activist judge” is a term each side uses to condemn the interpretations of the jurists with whom they disagree, as if those with whom they agree are simply neutral arbiters. In reality, there isn’t a lot of room left for neutrality, and the current deadlock in confirming a new Justice makes that evident.