The Way Democracy is Supposed to Work -- Part Two of Two

Editor’s note. Please send your comments to daveandrusko@hotmail.com.

With the clash between pro-abortion Democratic Senators Barack Obama and Hillary Clinton showing few signs of resolution, it's not surprising that supporters of front-runner Obama continue to float a number of "end-game scenarios" by which Clinton folds up her presidential tents and agrees to exit stage left. One that I found particular amusing, yet enlightening, was the stage-whisper suggestion that in exchange for bidding adieu, Clinton would be appointed to the Supreme Court.

Foolish? Silly? Of course, at least to most of us. But the self-interest of the Obama campaign aside, appointing a politician to the nation's highest court has a lot of appeal for those who are convinced the Supreme Court is, or ought to be, a super-legislative body that "corrects" the “flaws” and “inadequacies” of the real legislative branch.

That's why I found “Scalia says he'd have difficulty winning confirmation now,” a story that appeared in yesterday’s Boston Globe, particularly intriguing. The story covers a speech and Q&A the 72-year old Scalia had with students at the Roger Williams University law school.

Here’s the lead: “BRISTOL, R.I. --U.S. Supreme Court Justice Antonin Scalia said Monday he would have had difficulty winning confirmation to the nation's highest court if he were nominated today because the public expects its judges to rewrite the Constitution rather than interpret the document narrowly based on its original intent.”

I wasn’t there, so I don’t know if that is an accurate paraphrase of Justice Scalia’s remarks. From later comments in the story, my guess is that it most likely isn’t.

But it is no doubt true that Scalia, nominated by President Reagan and confirmed by a 98-0 margin in 1986, would face much, much tougher going today. But I suspect that it has less (if anything) to do with the public’s desire that the Constitution be rewritten on the fly than it is a reflection of a worldview held by liberals in the Senate (and elsewhere) who insist the Constitution is a “living document” that must “evolve with the times.”

But "If the court's rewriting the Constitution, it's an enormously powerful political body,” Scalia said, “and its selection will be done in a political fashion.”

Scalia told the students, according to Eric Tucker, that the Constitution, “though a ‘remarkable piece of work,’ does not contain everything the public cares passionately about.” For example, the “right” to abortion, which (as Scalia has said countless times) is nowhere to be found in the Constitution.

If someone believes in the right to abortion, Scalia said the proper venue is the legislative branch.

"You want the right to abortion? Create it the way most rights are created in a democracy. Persuade your fellow citizens it's a good idea -- and pass a law," Scalia said.

Part One