Would Scalia Approve of GOP’s Delay Tactics?

Ezekiel Emanuel in The Washington Post argues that “a true ‘originalist’ would reject the Republican position” of blocking a presidential supreme court nominee in “order to defer to the American people.”

“An originalist would begin by looking at what the Constitution says about choosing a Supreme Court justice. An originalist would note that the framers clearly wanted the court to be insulated from the people’s wishes. To put them above the clash of politics, the Constitution gave justices lifetime appointments, to which they were nominated, not elected. Furthermore, justices were nominated by a president who was elected by an Electoral College — not the American public — and confirmed by a Senate elected, at the framing, by state legislatures — again, not the public. Originalism clearly argues against deferring to public opinion on the composition of the Supreme Court.”

“The history of the founding generation itself also makes clear that the framers wanted the Supreme Court nomination and confirmation process not to depend upon the outcome of an election.”

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