March 26, 2013
Antonin Scalia
Justice Antonin Scalia in 2011 (Jewel Sawad / Getty Images)

To the list of Republican albatrosses, I would like to add another choker on the party’s political prospects: Antonin Scalia. For years, when Republican presidential candidates have been asked to describe the sort of judges they might nominate to the federal bench or even the Supreme Court, they have answered, “Judges like Antonin Scalia and Clarence Thomas.”

Scalia would seem to summarize for many the reversal of fortunes for Republicans. The justice who headed the court that delivered the presidency to George W. Bush, the man whose mean wit and arrogant swagger seemed just right for the cowboy years of the Texas president — suddenly he, like the party he so often favors in his opinions, seems out-of-touch.

Like the underpinnings of other Republican-led initiatives — the Iraq war and deficit-exploding fiscal policies, for example — Scalia’s judicial philosophy is based on a deception. He had a novel idea: Judge laws by the oldest and highest standards of the land: the Constitution. Conservatives fell in love. They finally found a strong, consistent, intellectual counterweight to liberals’ judicial “activism.”  Problem is: Scalia is really an activist, too; he just comes at it from the right.

The Bush v. Gore decision? This faux constitutional originalist signed on to an opinion that exempted it from precedent, supposedly the holy grail for judges of his ilk. He now dismisses criticism of that ruling by saying “get over it.”

Gay marriage? Well, “homosexual sodomy” is an “easy ” one for the judge. He says, “If we cannot have moral feeling against homosexuality, can we have it against murder? Can we have it against other things?”

On many issues, the justice seems to reason with his gut, rather than his mind — another Republican characteristic that now seems anachronistic.