“I have no illusions that your man will nominate someone who shares my orientation, but I hope he sends us someone smart. Let me put a finer point on it. I hope he sends us Elena Kagan.”
—The recently departed Antonin Scalia, speaking to Obama advisor David Axelrod seven years ago, as President Obama was faced with making his first Supreme Court nomination upon the retirement of Justice Souter.
Kagan, of course, was finally chosen to fill the second SCOTUS vacancy. Axelrod treats this conversation as somehow shocking, which I guess it would be to a political operative like him, to whom partisan warfare is everything,. Yet Scalia, who was known to be good friends with several of the more liberal members of the court, including Kagan, displayed with that private statement to Axelrod the professional attitude I have heard from many lawyers, and that perfectly describes my own. What is important to have on the Supreme Court are the best and most competent legal minds available. Assuming such judges also possess integrity, the third branch of the government will be in good hands.
Every American should feel that way, but most Americans have been made to believe that the Supreme Court is just another political body, though an undemocratic one. This has been the result of a concerted and damaging effort by political hacks on both ends of the political spectrum, most of whom would not be able to comprehend the legal arguments and principles in the simplest of Supreme Court cases. The United States is a nation constructed on laws, with the laws constrained by principles of ethics and human rights. It mattered more to Antonin Scalia that his colleagues be smart than that they agree with him. Of course it did. He was a judge and a scholar, not a politician.
And that shows us just how smart…and ethical…Justice Scalia was.