Appointing an Originalist Supreme Court Justice

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.

Reader Discussion

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on September 05, 2015 at 17:18:38 pm

I wish you guys had the humility to respond to common sense--even if your response is well fortified rebuke instead of dead intellectual construct that I see daily and am trying to ignore--to admit to your abuse of propriety. Propriety by justification addresses the objective truth not the rules of a parlor game. I am not trying to be rude rather am trying to express the view from down up.

Thomas Jefferson wanted the entire constitution for the USA scraped every 19 years--his computation of the passing of generations--so that the current generation would not be burdened by obsolete ideas. Jefferson's witness says that originalism should not be debated. Take for example, redemption for slavery, or the character of personal gods. The north's god was for abolition; the south's god was for slavery; and the descendants of slaves are for black god. Meanwhile, natives are for red gods. Competitive gods, perhaps all gods, are obsolete. Regardless, they are not civic subjects.

More importantly, the only important sentence in the 1791 complete document as negotiated for ratification, is flawed. "We the People of the United States," a totalitarian claim, will not happen: there will always be an alien faction within We the People.

So, the subject for a civic contract might become "A Civic People of the United States." And the goals of that faction, perhaps a super-majority around 70% of inhabitants, would use physics-based ethics to determine civic morality, leaving religious morality as personal affair for believers, not to be brought into civic debate.

A Civic People of the United States need you constitutional scholars to get involved in this debate and lead the scholarly way while the caboose still can be caught. (Einstein's idea is 74 years old now, and the constitution for the USA has been flawed for 224 years.)

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Phil Beaver
on September 05, 2015 at 20:23:40 pm

Gee, that somehow seems less than "civic."

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on September 06, 2015 at 10:51:33 am

Civic collaboration requires blunt discussion. However, as in the rest of our "theory of a civic people" we take the words of Albert Einstein, 1941:

The [civic] way of thinking has a further characteristic. The concepts which it uses to build up its coherent systems are not expressing emotions. For the [civic person], there is only “being,” but no wishing, no valuing, no good, no evil; no goal.

We think "goal" needs modification in that being a civic person is a goal. If so, a people may collaborate to maintain a transcending culture of a civic people wherein all no-harm factional cultures flourish. This theory is developed in our website essays, especially under "Discussion."

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Phil Beaver
on September 06, 2015 at 20:53:53 pm

In 1868, shortly before the Fourteenth Amendment was ratified, John Bingham said very publicly:

"It has been settled law in this country from a very early period that the constitutionality of a law should not be questioned, much less be adjudged invalid by a Court clothed by the Constitution with jurisdiction in the premises, unless upon a case so clear as to scarcely admit of a doubt...."

This seems to strongly support McGinnis, at least as far as the 14th Amendment is concerned.

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Andrew Hyman
on September 07, 2015 at 23:05:30 pm

Andrew--great quote. Thanks! Hopefully, you'll have reason to fire up "confirmthem" again.

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David Upham
on September 08, 2015 at 11:27:37 am

I'm willing. :-)

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Andrew Hyman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.