Donald Trump’s conservative hero would have been appalled by the move he’s trying to make to push through his Cabinet picks, an analyst wrote Monday.
“Justice [Antonin] Scalia was a remarkable person and a brilliant Supreme Court justice,” Trump said during his first term in the White House. Scalia died in 2016.
The then-president promised he would use Scalia as a guide when picking judges.
But a New York Times analysis found the late justice would have likely been absolutely opposed to what Trump has suggested in his first couple of weeks as president-elect.
“The idea would have alarmed Justice Scalia,” Supreme Court correspondent Adam Liptak wrote.
“That is not speculation or inference. Ten years ago, Justice Scalia anticipated the current dispute in a blistering 15-minute statement.”
Scalia was ruling on an attempt in 2014 by then-President Barack Obama to appoint nominees during breaks in the Senate.
And he spoke directly to the reasoning Trump is using today with a suggestion that the Senate should be recessed, which would allow him to put his choices in place without them being confirmed.
His reason, he said, is that needing confirmation will stop him filling his Cabinet quickly enough. Critics have said he’s worried some of his controversial picks won’t make it through confirmation.
But, in a ruling in 2014, Scalia said that was not a good reason.
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“Governing would be much simpler if the president could choose the people he wanted to fill certain offices without having to get a bunch of senators to agree,” he said. “But the point of the Constitution is not simply to make government run efficiently.”
He added, “The only remaining practical use for the recess appointment power is the ignoble one of enabling presidents to circumvent the Senate’s role in the appointment process.”
Scalia even imagined a situation exactly as Trump faces, with his party holding a Senate majority.
“Its members often are not motivated to resist encroachment by a president who is the leader of their own party,” he said.
Current Justices John Roberts, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s opinion in 2014.
Trump presented the Presidential Medal of Freedom to Scalia’s widow in 2018.