Law professors talk a lot about the legitimacy of the Supreme Court but they should guard their own legitimacy as well.
Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired. The nominees are not only a tribute to the President but to an idea and to an organization. The idea is originalism—the notion that the Constitution’s provisions should be interpreted according the meaning they had at the time they were enacted. They should not become vessels for judges to update their meaning.
The organization is the Federalist Society. It is established around the ideal of originalism, and enlists thousands of lawyers around the nation in defending it. Now more than thirty years old, it has gained in strength over the decades. And some of its best and most articulate members have become Trump’s nominees for the federal district and appellate courts.
The combination of a powerful idea and a far flung organization has made it easy for Republicans to unite behind the President’s nominees, as they have not yet been able to unite behind any other policy of importance. And the result has also been to make the Democrats look foolish and extreme, because originalism has a common sense appeal that is difficult to attack and the nominees have qualifications and abilities that are difficult to assail.
The hearing of Joan Larsen and Amy Coney Barrett for positions on the federal appellate courts showed that the Democratic Senators, unable to attack originalism frontally, resorted to assaults that were either ineffective or harmed their cause. Most damaging were complaints about Professor Barrett’s religiosity. Senator Feinstein’s statement that the “dogma lives loudly within you” (where dogma was obviously a reference to Catholic doctrine) came at the very end of a hearing where her fellow Senators had not succeeded in landing any telling blows against the nominee. It is the “dogma” soundbite that will be remembered, much to the detriment of Senator Feinstein and her party.
Other senators were no more effective. Senator Sheldon Whitehouse argued that “dark money” was behind their nominations and demanded that Justice Larsen tell him why outside groups supported her. Senator Al Franken angrily complained that Amy Barrett had spoken at a conference funded by the Alliance Defending Freedom, a group that opposed homosexual rights, as if a professor should investigate all the policy positions of an organization before speaking to law students at a conference. (I myself welcome the opportunity to speak at private organizations even if I profoundly disagree with their views, so long as I can speak the truth as I see it. People who already agree with me are not in as much need of what I have to say).
It is true that some senators wondered about the nominees’ willingness to abide by Supreme Court precedent. But originalism provides the response to this question as well: judges of what the Constitution calls an “inferior court” are bound by those precedents. To be sure, where these precedents are unclear originalists should interpret them in a manner most friendly to original meaning. But that just forces Democratic Senators back to ground where they are mostly unwilling to fight.
Thus, until the Democrats unite around a jurisprudential ideal that is more persuasive to the public than originalism, they will not succeed in stopping Trump’s nominees. Dealing in religious innuendo, denouncing outside groups, and demanding fealty to a few precedents will not do the trick.