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Originalism and the Confirmation Process

Cato Unbound has created a forum for discussion of the thesis of John Lott’s latest book, Dumbing Down the Courts. In the book, Lott argues that indicia of judicial quality, such as law school attended and career success, are actually hindrances in getting confirmed as each party tries to prevent the other party’s judicial champions from getting on the bench.

In my contribution, I argue that Lott has discovered a trend that can reduce the quality of the output of the lower courts.   We would be better off with courts staffed by the best nominees of each party.  They would help create better and clearer resolutions, particularly in the many cases that have no substantial political or ideological import.

My essay offers a variety of solutions. One is a return to originalism, which would reduce the importance of judge’s political and ideological preferences in big stakes constitutional cases. I argue:

But another possible social solution is the revival of originalism in constitutional interpretation. That revival would also lower the stakes because judges would be adjudicating the most important legal questions not on the basis of their personal preferences but on the basis of the historical fixed meaning of constitutional provisions. They would look not inward to their own values but outwards to empirical facts of the world that judges have in common.

If a judge exercises less policy discretion, the identity of the judge matters less. Non-originalist doctrines, like that of modern substantive due process, unfortunately maximize policy discretion.  An originalism revival would be no panacea, but it can help:

No one should be so naïve to think that originalism will lead to universal consensus on legal questions. Judges will generally have biases and look at even historical evidence from a parochial perspective. But the method offers some substantial constraint, particularly if the political and academic cultures take originalism seriously–as they once did but have failed to do for decades. After all, the Marshall Court of the early republic, despite being composed of many justices appointed by Democratic-Republican as well as Federalist presidents, reached unanimous or close to unanimous decisions on the most controversial issues of the day, including the constitutionality of the Bank of the United States.

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