BY MICHAEL NOYES

BOZEMAN – Supreme Court Justice Antonin Scalia says justices who “rewrite the Constitution” to fit their own views are responsible for the politicization of the nomination process. (See sidebar here).
     Speaking in front of more than 200 people at the Museum of the Rockies in Bozeman, MT on Wednesday night, Scalia said he is not happy with the intrusion of politics into the process.
     However, he said, “I prefer this deterioration into politics to the alternative” of unelected judges continually rewriting the Constitution to suit their own views.
     “I’d rather have the people write (the Constitution) than the court write it,” Scalia said.
     His remarks come as the Senate is considering the nomination of President Barack Obama’s nominee, Elena Kagan, to the Supreme Court.
    Instead of looking for people who are most qualified in terms of experience and education, Scalia said the politicization of the process has led to a search for politically acceptable nominees. He was particularly dismissive of the trend to look for “moderate” judges and questioned what a moderate interpretation of the Constitution would look like.
     “(Is that) half-way between what it says and what we would like it to say?”
     An appointee of President Ronald Reagan to the Supreme Court in 1986, Scalia was confirmed by a vote of 98-0.
     “I don’t think I could get 60 votes today,” he said.
     Scalia’s speech was titled, “Mullahs of the West: Judges as Moral Arbiters.” In it he outlined the creation of “alphabet agencies” such as the now defunct Civil Aeronautics Board were an attempt to take politics out of the decision making process and put it into the hands of “experts.”
     “It is fair to say the project was a grand failure,” Scalia said.
     Many issues have no right or wrong answer and instead or merely policy preferences, according to Scalia. He said the agency-expert model has more recently been replaced by an activist judiciary where judges act as the moral arbiters on issues that are never mentioned in the Constitution.
     “Until relatively recently, the meaning of laws…was thought to be static,” he said. “Only the people could bring about changes by amending the Constitution.”
     As an example, Scalia noted that women’s suffrage was brought about by the American people amending the Constitution. He contrasted that with the court’s finding of a woman’s right to abortion in their Roe vs. Wade decision.
    “In an open democratic society, people can debate these issues,” said Scalia.
    He said when the court finds new rights in the Constitution that were not previously identified it destroys the concept of federalism. As an example, he said there is no reason Utah and New York must have the same laws regarding abortion.
     “What’s the advantage of federalism if states can’t have different views?”
     About an hour before his speech one protestor stood outside with a sign that read, “Corporate influence is not a First Amendment right.”
     The court’s recent ruling that allows campaign contributions by corporations was criticized by Obama during his last State of the Union. Asked about the president’s remarks at the event where many of the justices were present, Scalia said he typically does not attend the “silly spectacle.”
     There was a time the State of the Union speech, “was a serious thing,” he said. “It has become a series of applause lines. I don’t know why the Supreme Court should lend dignity to that silly occasion.”
     In a question-and-answer session with the audience following his speech, Scalia declined to answer a question concerning the controversial Arizona immigration law. Parts of that law were recently struck down by a federal judge.
     “Want to get me recused from the case?” Scalia said, drawing laughter from the audience.