Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.
1. Bruising confirmation battles are worth the political capital for a lifetime appointment.
Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.
2. Paper trails are an asset, not a disqualification.
Whelan agrees with Blackman and Barnett’s view that “SCOTUS-wannabees” who “spend their careers seeking the approval of others” are “the exact sort of people who will be cowed by the Beltway social pressures and the New York Times editorial page.” While I agree that paper trails provide useful information, obviously they come with costs. If one’s party does not control the Senate, then a controversial paper trail can be a big liability and lead to a failed nomination. The loss of the Bork nomination was harmful not only to President Reagan, but to originalism. Of course, Bork’s problem was not simply his paper trail, but also his ineffectiveness in testifying before the Senate.
3. Reject clichéd calls for “judicial restraint.”
Whelan disagrees here, arguing that cliches can be useful and that one must be concerned not only with underenforcement of the Constitution (which judicial restraint might suggest) but also overenforcement (by protecting rights that are not in the Constitution).
The disagreement here largely turns on the fact that Blackman and Barnett are in favor of a much more “engaged” or “activist” judiciary than Whelan is.
I tend to be skeptical of judicial restraint. My working view is that the Constitution should be interpreted in a neutral manner, neither placing a finger on the scale for unconstitutionality nor constitutionality. It is true that there is some evidence, put forward by John McGinnis, that might be used to show that the judiciary should not hold provisions unconstitutional unless there is a manifest contradiction or some higher showing than a neutral standard would require. But so far I remain skeptical.
4. Focus on the Constitution, not issues du jour.
While Whelan again disagrees, Blackman and Barnett has some good points here about how it is difficult to predict which future issues will come before the Court and how decisions about specific cases do not indicate how the judge will decide other cases. Blackman and Barnett also argue persuasively that the President should only choose judges who are originalists. It is true, as Whelan argues, that issues du jour can be revealing. Therefore, I would of course recommend considering both the judge’s jurisprudence and his proposed resolution of particular issues, but with the focus on the jurisprudence.
5. Focus on clauses, not cases.
I agree with Blackman and Barnett here that a focus on clauses is extremely useful. While Whelan argues that answering questions about clauses can be avoided by prospective justices just as easily as questions about cases, I don’t think that is quite right. The clause is a more general matter and it is harder for a prospective justice to ignore general questions.
In the end, it is easy to overstate the disagreements of Whelan with Blackman and Barnett, since both sides are in favor of originalism, albeit different versions. Still, these are important questions for appointing the next member of the Court and avoiding the mistakes of the past.