The battle over filling Justice Antonin Scalia's seat on the U.S. Supreme Court has already begun in earnest. President Barack Obama vowed to appoint a successor almost immediately upon learning of the conservative jurist's death. "I plan to fulfill my constitutional responsibilities to nominate a successor in due time," the Democratic president said.
Senator Mitch McConnell, the Republican majority leader, countered moments later that "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president." The candidates for the Republican presidential nomination are united in their support of Senator McConnell's position.
Unfortunately, the real fight over filling Justice Scalia's seat is about partisan politics: President Obama wishes to help cement his legacy by appointing a liberal to replace the conservative Scalia, whereas the Republican-controlled Senate and the candidates for the Republican presidential nomination want to wait until a new president takes office because they hope the next president will be a Republican. That is obvious to anybody who has paid even a minute's attention to the avalanche of commentary about replacing Justice Scalia.
But what is not so obvious in this day and age of "everything is political" is that both President Obama and his Republican critics are wrong to default to the clichéd practice of partisan politics during this potentially transformative moment in the history of the Supreme Court. In honor of Justice Scalia, the nation's most celebrated proponent of the historical approach to constitutional interpretation known as "originalism," it is important to point out that partisan usage of the appointment process is not what the original understanding of the Constitution demands.
Instead, the original understanding is for, to quote James Madison, "a bench happily filled" with the esteemed likes of "Wythe, Blair, and Pendleton": leading jurists of Madison's day. The debates during the Constitutional Convention of 1787 were silent on the criteria for appointment precisely because the delegates assumed that the basis of selection would be merit. Even Alexander Hamilton, who saw a limited role for the Senate in the appointment process, believed that the Senate could -- and should -- reject a nominee who was lacking in objective merit. "Thus it could hardly happen," Hamilton wrote in The Federalist Papers, "that the majority of the Senate would feel any other complacency toward the object of an appointment than such as the appearance of merit might inspire and the proofs of the want of it destroy."
Although the vast majority of political commentators appear to believe that, given the realities of constitutional politics, a merit-based appointment process is not realistic, I respectfully disagree. To borrow from Professor Henry J. Abraham, almost certainly the leading scholar of the appointment process who ever lived, "merit need not, indeed does not, 'lie in the eye of the beholder,' It is eminently identifiable and attainable."
And whatever one may have thought about Justice Scalia's conservative politics, it is difficult to deny that the president who nominated him to the Supreme Court, Ronald Reagan, and the Senate that unanimously confirmed him, "happily filled" the Court with a judge of unquestionable merit. Indeed, as rancourous as the political commentary has already been about filling Justice Scalia's seat, there has been virtual unanimity from both the Left and the Right that Justice Scalia was a brilliant jurist who not only wrote more beautifully than any justice since Oliver Wendell Holmes Jr. but also transformed the very nature of constitutional interpretation itself.
The most fitting tribute that President Obama and the Republicans can therefore pay to Justice Scalia is to put aside partisan politics and work together to appoint a successor of comparable merit. The Constitution requires no less.