How Trump’s Judicial Nominees Put Democrats in a Bind

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.

Reader Discussion

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on September 08, 2017 at 11:03:22 am

The Left is desperate. Here is an attack on Sixth Circuit nominee Joan Larsen by the SPLC ally People for the American Way [sic]: "Also of concern is the signal Larsen sent about her conservative ideology during her campaign for the Michigan Supreme Court last year. Her website stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say. Judges are supposed to interpret the laws; they are not supposed to make them.” This is coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people."

In other words, originalists are unfit to serve, because the LGBT agenda is made-up constitutional law. This stands the rule of law on its head!

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Mark Pulliam
on September 08, 2017 at 14:43:44 pm

McGinnis seems to approve of the idea that inferior courts should be bound by over 100 years of miserable Supreme Court precedent when constitutional issues are presented.

My question is: Why?

All Article III judges swear to uphold the Constitution as written. They do not swear to uphold the frankly bizarre interpretations of the Constitution that the Supreme Court has been producing since 1857.

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on September 09, 2017 at 01:02:27 am

No one is a fiercer advocate for originalism than l am, but PFAW has a point: FedSoc "originalists" are not originalists. Case in point: the judge-made doctrine of domestic sovereign immunity. Try finding it in COTUS! Constitutional scholar Scalia couldn't, admitting that domestic sovereign immunity was not a part of the English common law known to the Framers. Antonin Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Ct. Hist. Soc’y. (1985). Yet, he managed to find it in the Eleventh Amendment, despite language in the Constitution to the contrary. U.S. Const. amend. XII; see e.g., John Paul Stevens, "Two Questions About Justice," 2003 Ill. L. Rev. 821, 824 (historical analysis). Bottom line, Justice Scalia was about as faithful to his "originalism" as Tiger Woods was to his ex-wife Elin. See, Randy Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006) (collecting examples). Alden v. Maine was all about his putting his fat arse on the scales of justice for his own personal benefit, betraying the principles of originalism he had championed his entire professional life.

Robert Bork was not a stupid man ... but he was one of the most corrupt lawyers we have ever seen in our government (the infamous hatchet man in the "Saturday Night Massacre"). He read the 9Am out of existence because he needed to to get to his desired outcome. Again, what originalism?

MP: "the LGBT agenda is made-up constitutional law."

How so? As for SSM, l don't need to trundle through the penumbra closet to find it.

The right to contract is an essential corollary of the right to own property, as you must be able to acquire and dispose of it to actually own it. In a secular society, marriage is a mere contract, with default terms drafted by the State. Rights are retained by the individual unless ceded to the State; all that a State can do is abridge rights and then, only in accordance with the authority granted to it. As the right to marry is fundamental, Loving v. Virginia, 388 U.S. 1 (1967), the State has to show a compelling interest in preventing two persons from entering into that marriage contract. As the State cannot show that it is in any way harmed when Fred and Ted decide to wed, it has no colorable authority to prevent them from doing so. This must be so as long as ours is a constitutional Republic with limited government powers.

I express no opinion on the ultimate wisdom of same-sex marriage, pointing out only that are stuck with the constitutions we have.

Contra Robert Bork, the 9Am says what it means, and means what it says. And if there was any lingering doubt, James Madison laid it to rest, arguing that

"….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

While testifying under penalty of perjury, every sitting Supreme Court Justice has agreed with this sentiment. Justice Sotomayor notes that the “intent of the founders was set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging.” Justice Thomas asserted that his job as a judge is “to interpret [lawmakers’] intent, not to second-guess” it. Chief Justice Roberts adds that “the Framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.”

Rights are not given to us by government; they can only be taken away. l don't understand this group's irrational antipathy to SSM, but our opinions are not germane. The only question that matters is whether the government has lawful authority to invalidate SSM--and ~100 courts have said that there isn't any.

On what basis in law do you assert that the LGBT agenda is made-up law? Crickets on standby.

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on September 09, 2017 at 06:31:31 am

The answer is simple. Nearly two centuries ago, Justice (Professor) Story explained:

"The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles."

The system presupposes meaningful appellate review. ln theory, SCOTUS is supposed to fix bad precedents. ln practice, the Justices are too busy rubbing elbows with the Queen and officiating moot court to do their jobs.

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on September 09, 2017 at 06:41:40 am

EK: "All Article III judges swear to uphold the Constitution as written. They do not swear to uphold the frankly bizarre interpretations of the Constitution that the Supreme Court has been producing since 1857."

Speaking of "bizarre," your interpretation of COTUS is so far off the path of respectability that even all the ganga in Seattle wouldn't enable me to find it. By way of example:

EK: "In constitutional democratic republics, such as the US and the several states, a constitution identifies any fundamental individual rights that will always be respected, notwithstanding the will of any transient majority that may emerge."

The Framers respectfully disagree. In introducing his original draft of our Bill of Rights to the House of Representatives, Madison explained that he consciously avoided attempting to enumerate all the rights retained by the people ...

EK: "Our problem with the Nine Nazgûl is that since 1940, they have been discovering individual rights that never existed before in western history. They have not been ratified by the governed and they are a usurpation of popular sovereignty."

That statement is pure constitutional eisegesis. Rights are retained by the individual unless expressly ceded to either the federal or state government. And yes, even those they didn't think of. Professor Barnett refers to this foundational concept as "the presumption of liberty." Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).

EK: "The 9th Amendment affirms popular sovereignty"

As Madison explained, it does nothing of the sort. lt equates enumerated and unenumerated rights, such as the right of the next William Penn to not have to remove his hat in deference to authority. You don't get the vote of the Pennsylvania delegation without it.

EK: "the 10th Amendment affirms that, acting through their state republics, the governed in each state may chose what rights or interest to vindicate and which to restrain – limited only by the plain language of the Federal constitution."

Article 3 of the New Hampshire Constitution provides: "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void." While no other state constitution states it with more clarity, the concept was ubiquitous: Natural rights are retained unless and until they are surrendered.

Mark Twain put it this way: "It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so." lf you had a decent handle on constitutional theory, you wouldn't say what you do.

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on September 09, 2017 at 11:47:33 am

JMc: "Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired."

Even this unprecedented and imprudent abuse of raw majority power could come back to bite the Rs. lmagine that, in 2020, President Kamala Harris and the Democratic majority decided that we needed to double the size of the federal judiciary (we actually do). As the filibuster was interred by McConnell, the Ds can now unpack and repack the courts. The Nine becomes the Ninety-Nine, as the Court is tasked with actually reviewing the lower courts' messes (yes, it lS a core constitutional obligation). Or better yet, the Ds take all power of appellate review away from SCOTUS, investing it in a new Court packed by Larry Tribe disciples.

You may live to rue the day Merrick Garland was cashiered.

What worries me is that we no longer have judges, but reliable proxies for the factions. The quality of decision suffers on a daily basis, whether Janice Rogers Brown or Ketanji Brown Jackson is doing the hatchet job.

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