Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law.
"If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us," he said, explaining that's why senators increasingly probe nominees for their personal views on positions such as abortion.
He traces the "notion of a living Constitution" to the Warren Court, and specifically to Earl Warren:
"You have a chief justice who was a governor, a policy-maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it's hard not to follow," Scalia said, in response to a question from the audience.
When I teach Constitutional Law, I trace the notion of a living Constitution to McCulloch v. Maryland (1819). I thought all conlawprofs did.
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