Justices Breyer And Scalia Take Their Constitutional Show To The Senate

WASHINGTON -- Supreme Court Justices Stephen Breyer and Antonin Scalia took their constitutional law road show to Congress on Wednesday at the invitation of the Senate Judiciary Committee. For more than two hours, the men discussed the differences between their judicial philosophies and fielded questions on the role of judges.

"I'm hoping that the 'living Constitution' will die," said Scalia in an exchange with Sen. Jeff Sessions (R-Ala.).

That was no novel sentiment from Scalia, who is the longest-serving justice on the current Court and this week celebrated the 25th anniversary of his confirmation. As a law professor and federal judge, he was one of the earliest and strongest advocates of "originalism," a mode of constitutional interpretation that directs judges to look to the meaning of the Constitution's text at the time of its ratification.

Breyer, who was confirmed to the Court in 1994, retorted, "It is a constitution we are expounding" -- a quotation from the legendary Chief Justice John Marshall in an 1819 case in which he explained that the document is "to be adapted to the various crises of human affairs."

It wasn't the first time the two justices have traded such remarks. Over the years, Scalia has perfected his defense of originalism against Breyer's call for "active liberty" -- commonly referred to as "living constitutionalism" -- in front of audiences across this country and as far away as Australia.

Sitting before the Senate Judiciary Committee, however, the justices were not in total control over the terms of the debate. And this time, Breyer and Scalia, two of the more active questioners among the nine Supreme Court justices, were the ones getting interrupted.

Nevertheless, the change in environment did not yield too many revelations. When Sen. Chuck Grassley (R-Iowa) asked Scalia whether judges should consult foreign law to answer questions about the U.S. Constitution, Scalia declined to answer the question, stating that he believed his "views on that issue are known," but that the topic was beyond the scope of the afternoon's hearing.

And when Sessions attacked "living constitutionalism" as judicial activism run amok, Breyer insisted that the public shouldn't "beware of a judge like me," but rather of those judges so "rigid" in following the letter of the law that they forget its spirit.

Even if the justices didn't make any news in Wednesday's hearing, the discussion served as a reminder of the woeful state of today's judicial confirmation process. Breyer and Scalia showed the kind of openness to discussing the merits of liberal and conservative judicial philosophies that was lacking in the confirmation hearings of the Court's four newest members.

Just as both John Roberts and Samuel Alito stonewalled questions from liberal senators intended to root out the conservatism the George W. Bush nominees had already displayed as appeals court judges, both Sonia Sotomayor and Elena Kagan repeatedly dispatched conservative senators' concerns that the two Obama nominees would end up, as they have, among the Court's liberals.

On Wednesday, Scalia said that he believes the "controversial nature of recent confirmation proceedings," in which nominees fear to state their true feelings lest they be rejected by the Senate, "is attributable to some extent to the doctrine of the living Constitution."

In a less philosophical sense, the hyper-politicized nature of the confirmation process can be traced back to the Senate's 1987 rejection of conservative jurist Robert Bork's nomination to the Court, which was seen as a triumph of liberal constitutionalism over Bork's steadfast originalism. Over the past two years, in the face of a vacancy crisis on the federal bench, Senate Republicans have used procedures from filibuster threats to secret holds to slow to a near halt dozens of President Barack Obama's judicial nominations.

Sen. Lindsey Graham (R-S.C.), for one, is no fan of what the confirmation process has become. One of the sole Republicans to have voted in favor of both Sotomayor and Kagan, Graham looked directly into C-Span's cameras on Wednesday to tell those watching that nominations are a "political decision" and, accordingly, the Senate should accept the consequences of elections and vote for competent judges even if their philosophies don't line up with those of the senator's political party.

Turning to Scalia, Graham noted that it wasn't "an accident Ronald Reagan picked you." And when neither Breyer nor Scalia found it proper to answer Graham's question about whether a senator should "vote for a person of opposing views," Graham asked them how many votes they received at their confirmations.

"Ninety-eight," Scalia said.

"Eighty-seven," Breyer followed.

With that, Graham had made his point to his colleagues.

The hearing, entitled "Considering the Role of Judges Under the Constitution of the United States," came on the heels of the Supreme Court's first week of oral arguments after its summer recess. Click here to watch the senators talk with Scalia and Breyer.

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