Let’s compare two Antonin Scalias. We join the first, the 50-year-old Supreme Court nominee, during his easy-as-pie confirmation hearings back in 1986. At one point during the questioning, Sen. Strom Thurmond served up one of those annoying softball questions friendly senators always ask; this one was about, of all things, the meaning of Marbury v. Madison.
As anyone who’s ever taken a high school civics class (an increasingly small percentage of the population today, unfortunately) should know, Marbury is the famous 1803 decision in which the Supreme Court, to the considerable dismay of President Thomas Jefferson, first established the principle of judicial review.
Bottom line: Asking a potential Supreme Court justice what he thinks about Marbury v. Madison is approximately equivalent to asking a major league baseball manager how many strikes a batter gets before he strikes out. We ain’t talking rocket science here.
Still, Scalia demurred. “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison,” he insisted. His public rationale for taking this position was, of course, the same one that most present day Supreme Court nominees hide behind during confirmation hearings — that it would be inappropriate to answer any question that might give even the appearance of prejudging a case that might later come before the Court. (more…)