The late Antonin Scalia was almost universally regarded as a brilliant jurist who not only wrote more beautifully than any Supreme Court justice since Oliver Wendell Holmes Jr. but also transformed the nature of constitutional interpretation itself. President Trump stated during the election campaign that he would "appoint judges very much in the mold of Justice Scalia." It is also Scalia's seat that the president will be nominating someone to fill on Thursday. The current cacophony about which judge on the president's short list is the most "Scalia-esque" is therefore understandable. But it is misguided.
I mean no disrespect to Justice Scalia--his Supreme Court opinions are the most fun for law professors to teach because he wrote so well--but the justice the president should be using as a model when selecting Scalia's replacement is Clarence Thomas. Why? For two primary reasons.
First, because no justice in the history of the Court has understood the connection between our nation's two founding documents, the Declaration of Independence and the Constitution of the United States, better than Justice Thomas. He has been reading, writing, and speaking about the subject since his days as chairman of the EEOC during the Reagan Administration. Although opponents of Thomas's nomination to the Court a quarter of a century ago, such as Harvard's Laurence Tribe, tried to use Thomas's commitment to the principles of the Declaration against him, they were foolish to do so. After all, Thomas Jefferson penned the Declaration in 1776 as "an expression of the American mind," Abraham Lincoln invoked the Declaration in the 1850s and '60s to help end slavery, and Martin Luther King Jr.'s famous "I Have a Dream" speech in 1963 was sown from the Declaration's promise that every person in America would one day live in a nation "where they will not be judged by the color of their skin but by the content of their character."
Justice Thomas shares this vision of the American regime. For example, he reminded the faculty and students of James Madison University in Virginia that Madison, the chief architect of the Constitution, based the Constitution on "universal principles, [which] we find ... most succinctly and, indeed, elegantly stated by Madison's close friend, Thomas Jefferson, in our Declaration of Independence." Thomas went on in his speech to describe how the Constitution secures the rights promised to all Americans by the Declaration.
President Trump would be well served by reading Justice Thomas's James Madison Day Lecture. He also should read Thomas's Lincoln Day address to the Claremont Institute. That speech, in my judgment, is the most significant speech about the Declaration since Rev. King's "I Have a Dream." There, Thomas urges the American people "to be ever vigilant in reminding us--me and everyone else who has the privilege of serving our nation through public office--of the principles of our Founding and how they apply to the controversies of our time."
The second reason that President Trump should use Justice Thomas as a model when selecting Scalia's replacement is less jurisprudential than the first, but at the present moment in American politics--arguably the meanest and the most uncivil in our history--it is probably more important. Justice Scalia, for all his skill as a literary stylist, sometimes crossed the line with his impassioned rhetoric. And as we all know, the presidential election campaign that led to Donald Trump's victory was frequently caustic, to put it mildly, and the opening days of the new Administration have not deviated from that path. Thomas, in contrast, has an unparalleled reputation on the Court for being kind to everyone, no matter what their station in life. He mentors young persons. He visits people in the hospital. He lingers after speeches and events until everyone who wants to meet him, ask him a question, or take a photograph with him has had a chance to do so. He knows the names of everyone who works at the Court and he cares about them and their families. And when you interact with him one on one, as I have been fortunate enough to do on a couple of occasions, he wants to talk about you, not about himself.
The Supreme Court could use another justice like Clarence Thomas, and so could the American people. Let's hope that President Trump realizes it too.