This was not simply a double down on his praise of Scalia as the judge who, along with Clarence Thomas, is at the top of his High Court heroes list. It sent the strongest signal that his picks will not just be garden variety strict constructionists, but activists and influencers on the bench. They will be judges who won’t just base their rulings on the standard conservative playbook, but will cajole, hector and badger other judges to toe the hard conservative line in their rulings — and who will have the gall, when it suits their purpose, not even to try and hide it. Scalia was the textbook example of this kind of judge. He didn’t even try to make a constitutional cover for his court push to give Florida to Bush in the 2000 election. As he famously and shamelessly said that, “The only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world.”
Scalia played that part to the max. Nowhere was that on more stunning display than for the two decades that he served as the court schoolmaster for Thomas. Along the way, he ensured that the other justices looked hard over their shoulders at him when they huddled to craft an opinion in a case. It was no accident that with Scalia gone from the court, it looks and even sounds like an almost moderate court on some of its rulings: on abortion rights, affirmative action, voting rights and the feds paying for contraceptives at religious hospitals. The outcome would have almost certainly been different if Scalia had been there.
GOP Vice Presidential contender Mike Pence made the Trump-Scalia axis official when he vowed to a campaign crowd in Michigan that Trump’s High Court pick would hit the bench with the practically sworn duty to slam down the curtain on Roe v. Wade. This was tantamount to promising to say to heck with law, prior rulings or deliberations, the judge would just knock out abortion rights period. Pence didn’t stop there. He repeatedly tossed out the mantra that Trump will appoint strict constructionists in his appointments and not just for a Scalia-type judicial hit on abortion rights. This was a prime advertisement for unapologetic conservative judicial activism in the cookie-cutter mold of a Scalia.
Trump didn’t publicly drop Scalia’s name at the convention solely because he considered him the judge with the right stuff. It was the one person that he knew, above all others, was considered a demigod among party ultra-conservatives, pro-lifers and evangelicals. They have from time to time voiced big doubts about Trump’s less-than-stout conservative pronouncements about abortion, planned parenthood, religious values and law and public policy decisions as translated by the courts. With the non-endorsement of him at the convention by their shining knight Ted Cruz, this makes it even more imperative for Trump to send the signal that he will move mountains to find and nominate Scalia type activist judges to the High Court.
In decades past, many Democratic and Republican-appointed justices have scrapped party loyalties and based their legal decisions solely on the merit of the law, constitutional principles and the public good. Scalia was a judicial horse of a different color. The tip-off that judges like him would vote their ideology rather than the law came from George W. Bush. On the presidential campaign trail in 2000, Bush was asked if elected what kind of judge he’d look for and nominate. He didn’t hesitate. He pledged to appoint “strict constructionists” to the court and specifically named Thomas, Scalia and William Rehnquist as the judges that perfectly fit that description. By then the three had already carved out a hard line niche as three of the most reflexive, knee-jerk, reactionary jurists to grace the court in decades. Their votes to torpedo, water down, eviscerate or erode rights on all issues from abortion to civil rights were so predictable they could have been mailed in.
A Supreme Court judge can sit on the court for years even decades and watch as legions of Republicans and Democrats come and go in Congress and the White House. Scalia certainly did. All the while, they are shaping and remaking law and public policy for decades to come with their votes, rulings and opinions. Trump may not know much else but he knows that a few more Scalias on the bench will ensure that the High Court does just that, and his way.
Author: Earl Ofari Hutchinson