One of the first items the president-elect will face after inauguration is the task of selecting and nominating a suitable replacement for Supreme Court Justice Anton Scalia. In other words, Donald Trump will be faced with selecting a man or woman that uses the same interpretive method of understanding the U.S. Constitution as did Scalia. Contrary to the understanding of those like Hillary Clinton, Supreme Court Justices should not be selected by "look[ing] broadly and widely for people who represent the diversity of our country." Neither is a Supreme Court justice chosen for the purpose of fulfilling a diversity requirement.
The Supreme Court interprets the law. As an originalist, Justice Scalia sought to interpret the constitution in the manner in which the text had been interpreted at the time of its crafting. By either seeking to understand the original intent of the Constitution's crafters, or by seeking to understand how the Constitution may have been understood at the time of its writing, originalists rightly place much of their interpretation in the hands of those that created it.
In a September statement, Trump explained he would seek a replacement for Scalia that would "protect our liberty with the highest regard for the Constitution." In contrast, Hillary Clinton said that America "need[s] a Supreme Court that will stand up on behalf of women's rights [and] on behalf of the rights of the LGBT community." Never before have America's two political parties stood so far apart.
In a recent column, economics professor Walter E. Williams emphasized the need for the Supreme Court not stand up on behalf of particular interest groups, but to serve as a neutral party that enforces laws with impartiality. The foundation of the civil society, he explains is neutral laws. Likening the Supreme Court justice as a referee, Williams disagreed with the Clinton's above statements, explaining that a sports game would have a completely different outcome if the referee failed to be impartial.
On Nov. 20, the Pittsburgh Steelers and the Cleveland Browns will play. So far this season, the Browns have not won a single game; their record is 0-9. On top of this sad record, the Browns have not had a winning season since 2007. By contrast, the Steelers haven't had a losing season since 2003. In anyone's book, this is a gross disparity. On Nov. 20, should the referees have the empathy to understand what it's like to be a perennial loser? What would you think of a referee whose decisions are guided by empathy? Let's be explicit.
In the name of compensatory justice, referees might stringently apply pass interference or roughing the passer violations against the Steelers and apply the rules less stringently against the Browns. Another question is: Would you support a referee who refuses to make defensive pass interference calls because he thinks it's a silly rule? You'd probably remind him that the league makes the rules, not referees. Most people would agree that football justice requires that referees apply the rules blindly and independent of the records or any other characteristic of the two teams. They would also agree that referees should impartially apply the rules of the game even if they personally disagree with some of the rules.
Hillary Clinton made it clear that she would have chosen Supreme Court candidates that exercised compensatory justice. As Williams points out, games refereed via compensatory justice would likely not end very peaceably. It is not far-fetched to imagine that a Supreme Court ruling on compassion would not result in the same outcome.