I’ve frequently been asked in the past few weeks what my father, the late Supreme Court Justice Antonin Scalia, would think about the contentious battle just waged over Judge Brett Kavanaugh’s nomination to the nation’s highest court.
Would he have been surprised by the heated debate, political maneuvers, protests, last-minute delays and uncorroborated allegations of sexual misconduct that we saw during now-Justice Kavanaugh’s confirmation process?
Although I don’t think my father (or anyone) could have predicted the twists and turns of the past several weeks, I don’t think he would have been shocked by the no-holds-barred fight over a Supreme Court vacancy, either. He long ago warned Americans about the excessive intrusion of politics into the judicial appointment process. And he explained that a large share of the blame belongs to the justices themselves.
My father believed that a major reason the judicial confirmation process has become so heated is that federal judges too often exceed the role envisioned by our nation’s founders and usurp the power of elected representatives.
Alexander Hamilton famously argued “that the judiciary is beyond comparison the weakest of the three departments of power” and that “the general liberty of the people can never be endangered from” the judicial branch.
But Hamilton qualified that claim. He said it would only be true as long as “the judiciary remains truly distinct from both the legislature and the Executive.” Hamilton agreed with the French political philosopher Montesquieu, who warned that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”
Maintaining that separation means limiting the role of judges. My father explained that for most of American history, Supreme Court justices recognized that the meaning of legal texts – including the Constitution – did not change.
Read more at Fox News.