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Obama Looking For Justice Who Will 'Interpret' The Law, Not 'Make' It

A black wool crepe was draped over Justice Antonin Scalia's chair at the Supreme Court following his death.
Bloomberg via Getty Images
A black wool crepe was draped over Justice Antonin Scalia's chair at the Supreme Court following his death.

The legal world has a new blogger: former constitutional law professor and current President Barack Obama.

The president took to SCOTUSblog, the leading online chronicle of the Supreme Court, on Wednesday to offer some "spoiler-free insights" into what he is seeking in a justice to replace the late Antonin Scalia.

Aside from "mastery of the law," Obama said he wants to choose a nominee who understands "a judge's job is to interpret the law, not make the law." But in cases where the law's unclear, the president wrote, he will look for "the kind of life experience learned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people's lives in a big, complicated democracy, and in rapidly changing times."

And, about those times: Senate Republicans signaled this week they will take no action on whomever the White House nominates. All 11 GOP members of the Judiciary Committee signed a letter Tuesday saying they would not give their consent under the Constitution. The lawmakers said they did not intend to even meet with the nominee, let alone hold a public hearing on his or her qualifications.

On Wednesday, President Obama blasted the politics of the Senate, and said the American people would have the chance to judge his nominee — something of a public relations campaign.

"My hope an expectation is that once there is an actual nominee... that those on the judiciary committee recognize that their job is to give this person a hearing, to show the courtesy of meeting with them. They are then free to vote whatever their conscience dictates."

"I'm going to do my job, I'm going to nominate someone," he continued, "and let the American people decide as to whether that person is qualified."

That means the court could operate without a full complement of nine members for a year or more, the equivalent of two terms of the Supreme Court. At least one current justice, Samuel Alito, commented on that, telling an audience at Georgetown Law school this week, "We will deal with it."

"There's nothing in the Constitution that specifies the size of the Supreme Court," Alito said. "There were times in the history of the court when the court had an even number of justices. They must have been more agreeable in those days."

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Carrie Johnson
Carrie Johnson is a justice correspondent for the Washington Desk.