Once again partisanship is rearing its disgusting head at the pre-confirmation debate over Brett Kavanaugh.  Long gone are the days when a judge’s qualifications were the only factors considered.  After all, Antonin Gregory Scalia was unanimously confirmed by the Senate in 1986, and in 1993 Ruth Bader Ginsburg had only three dissenting votes. A play about Scalia, The Originalist, shows how Americans should be willing to accept a viewpoint other than their own, something the Senate is unwilling to do. It is now playing in New York, and is also available to stream. 

With all the divisiveness going on in America today, it is nice to be able to have role models.  The Supreme Court justices may not agree on issues but they do it in a rational manner.  Justice Ginsberg recently spoke on how the court could bring even ideological opposites together. She spoke about her unlikely friendship with the late Justice Antonin Scalia, a conservative stalwart, “I miss him very much,” and said last week, "If I had my choice of dissenters when I was writing for the court, it would be Justice Scalia. Sometimes it was like a ping-pong game." Even more important, she is calling for a renewed bipartisanship when it comes to confirming federal judges.

Playwright John Strand hopes that this play will open people’s minds, “I want someone to listen to their political opposite and do it with respect. Justice Ginsberg and Justice Scalia each had a generosity of spirit.  They were civil and cordial colleagues, as well as good friends. It seems almost impossible to have civility between differing views today. What I saw lacking was that people would make vicious commentary without ever having read his opinions beyond the superficial stuff in the press. This is why I had in the play liberal Harvard Law School graduate, Cat, ambitiously embark on a clerkship with Justice Scalia where she discovers him to be both an infuriating sparring partner and an unexpected mentor.”

Although many thought of Justice Scalia as “a monster,” the actor playing him, Edward Gero, told American Thinker, “People have come up to me and said I don’t like any of his decisions, but you made me like him.  We have to stop vilifying people we do not agree with.  I think the Court offers a model of civil discourse where they can disagree with respect.  I became good friends with him and realized it did not matter if you differ with him.  But what did matter was stating your thoughts. He always respectfully would listen to the other side. Last year he and Justice Ginsberg were awarded the civility award, although he posthumously. Whatever your political position, Americans need to understand there is a human being there, a man behind the rulings.  In the current atmosphere that seldom happens.”

The play opens with opera music as Scalia states, “The notes are exactly what the composer composed, then, now, and a hundred years from now.  That is precisely my view of the Constitution and the law.”  He espoused clear lines of separation among the legislative, executive, and judicial branches with no branch allowed to exercise powers granted the other. 

Regarding the Constitution, he explained, “I am not an ideologue.  I am an Originalist, to interpret the Constitution as it is written and as it was understood,” and never viewed it as a living document that must change with the times. A very relevant issue that comes up time and again is what will happen with Roe vs. Wade. Viewers of the play will understand that he insisted that the Constitution says nothing about aborting an unborn child.  Throughout the play, people realized that Scalia felt that justices should “interpret the law, not make it,” and that Congress should assume its responsibility to “pass laws, that is how a democracy works.” At his confirmation hearing he answered Senator Ted Kennedy regarding this ruling, “It is not proper to answer questions Senator.  I have no agenda.  My only agenda is to be a good judge.”

The play discusses the ruling in the District of Columbia vs. Heller concerning gun control. There was a five-member majority where Justice Scalia summarized the invalidation of Washington D.C.’s handgun ban because it violates the Second Amendment. He felt, “I do law.  I don’t do law enforcement.  Passion is no match for the text, and violence is a trait of the human species.” In the play, he accuses Cat of opposing something she has no knowledge of.  A scene has him challenging the clerk Cat to fire a gun that is very similar to an incidnet involving Scalia and Justice Elena Kagan. 

Gero tells how the audience reaction has changed over time.  The play occurs during the 2011-2012 session and has been performed since 2015. “There is a line where Cat asks why does he drive a car because he could get in an accident and die.  His response, ‘half the country would cheer, and the other half will fight who will replace me on the bench.’  Before he passed away the first part of his quote would bring laughter, and after, the latter half provoked laughter.  Currently, the laughter has been replaced by a rumble.”

Since Justice Scalia was alive when the play was first staged, did he ever see it? The playwright Strand noted, “Scalia believed if he came and said he liked it, people will say he was pandering, and if he said he did not like it he would look childish.  He told me, ‘I can’t win either way so I am not coming.’  His son did come and thought it made his dad a hero.”

Those involved in the play should be applauded for attempting to show Justice Scalia not as a monster, but as someone with humor, intelligence, warmth, and accomplishments.  Whether Americans agree or disagree with him, after watching this play maybe they will understand that he had no agenda or bias, and as he once said, “I have always wanted what is best for this country.  Every day I fight to protect that.”

The author writes for American Thinker.  She has done book reviews, author interviews, and has written a number of national security, political, and foreign policy articles.