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The Confirmations Wars are not Partisan, but Principled

It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around  or oppose policies or nominees of the sitting President, simply by virtue of his party.  And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.

But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.

The Democratic judicial philosophy has also become clearer.  At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives  Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.

The  confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm. Some Democrats attacked Gorsuch and the Roberts Court openly because of  the results, not the reasoning, of their decisions.  Al Franken and Sheldon Whitehouse were particularly notable in this regard and made no substantial arguments that Judge Gorsuch or the Supreme Court were wrong on the law in the decisions they denounced.  Others, like Dick Durbin and Amy Klobuchar, attacked originalism as a faux or inadequate judicial philosophy.

The jurisprudential nature of the confirmation wars has both political and academic implications. First, differences in jurisprudential principle (or between principle and lack of principle) are intractable and much more difficult to compromise than most policy debates. The short-term result has been the refusal to give a hearing to Merrick Garland and the filibuster of Neil Gorsuch. The long-term result will be a Supreme Court ever more polarized between Democratic and Republican appointees, at least until one party’s judicial philosophy scores a decisive victory in the public mind and that is unlikely to happen anytime soon.

The open rejection of originalism by one of our two great political parties militates also against Will Baude’s and Stephen Sachs’ view that originalism is our law. We do not seem to have a single rule of recognition that tells us what the law is beyond the proposition that the law is what the Court says it is.

Another implication is that Democratic politicians do not seem to to be taking up Jack Balkin’s arguments for living originalism.  They largely reject originalism rather than embrace Jack’s attempt to make originalism more compatible with a judiciary active in pursuit of values.  Of course, his writings may still become more influential in the future.   As  John Maynard Keynes noted, politicians react to past scholars more than current ones.   At the hearing, for instance, Senator Durbin criticized a thirty year old version of originalism that almost no originalist now holds.

Reader Discussion

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on April 06, 2017 at 06:50:45 am

Professor McGinnis,

Admirable attempt to restore a measure of civility and reason, by extending the benefit of the doubt, to this judicial confirmation of Federal Judges.

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Paul Binotto
on April 06, 2017 at 09:35:00 am

Ah. Not partisan, but principled. And this explains why the entire Republican field of presidential candidates could oppose Obama's nominee to replace Scalia--before any nominee was named or contemplated, based solely on the knowledge that Obama would make the nomination--and why the Republican Senate went along with this ... how?

McGinnis makes a valiant effort at defending undefensible terrain.

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nobody.really
on April 06, 2017 at 11:02:24 am

Gadzooks....Harriet Miers "probably......lacked the depth of understanding to maintain what they (some Republicans) believed was a lawful jurisprudence."......after all she was JUST someone who was a practicing lawyer. How just not done!

When your previous post regarding Sheldon Whitehouse is added to this one, a picture emerges out of the fog (not unlike "Bleak House "), the Supreme Court is expected by politicians, (but especially the Democrats) to be no more than another form of a political institution.

Judge Gorsuch, who actually appears to have practiced law for clients other than the U.S., and who has continued as a thoughtful judge schooled the minority members of the judiciary committee on what comprises the foundation of the rule of law. Ergo, he is attacked, nat vilified. If he is a "conservative" it is because that which he would "conserve" is the process of Anglo-American judicial decision-making and its near 1,000 year heritage.

Rather, what many people of differing political persuasions have allowed to delude themselves is that the essence of the judicial process is outcome focused, rather than process focused. Like Dr. Suess' Bartholomew Cubbins, the less than impressive likes of Senators Whitehouse, Franken, Klobachur, Blumenthal, et al are naked political wizards seeking a recipie for their preferred brand of "oobleck". Never mind that they constantly sought the man to forsake his responsibilities under the Canons of Judicial Ethics.

Odds bodkin!

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BTG
on April 06, 2017 at 11:29:01 am

"The classic kind of congressional partisanship occurs when parties rally around or oppose policies or nominees of the sitting President, simply by virtue of his party."

In principle, we can know through both Faith and reason, that this war exist between those who desire to affirm the Sanctity of human life from the moment of our creation at our conception, and affirm the Sanctity of the marital act, and thus the Sanctity of marriage and the family as God intended, and those who deny that God Is The Author of Love, of Life, and of Marriage. That party that officially promotes abortion, while denying the Sanctity of the marital act and thus God's intention for marriage and the family, has become partisan to Caesar by rendering onto Caesar what Has Always belonged to God, thus we can know through both Faith and reason, these wars have become partisan due to a denial of our founding Judeo-Christian principles.

The Law of Noncontradiction makes it clear that one cannot be rendering onto God, what Has Always belonged to God, while rendering onto Caesar what belongs to God.

To suggest that a Supreme Court Justice, when he goes out in public, must render onto Caesar what belongs to God, when being questioned about certain man made laws that deny the precedent God set in Genesis, is more than just a contradiction in terms, it is a violation of Religious Liberty and thus the very Constitution every judge is called to secure and protect.

The Law of Noncontradiction is clear, one cannot be holding these truths to be self -evident, that" our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, are endowed to us by our Creator" (at the moment of our creation, which is not the same moment we are born) - "that to secure these unalienable Rights, Governments are instituted by men ...," while promoting and condoning the equality of sexual acts and sexual relationships, simultaneously, because The Law of Noncontradition makes it clear that one cannot be serving The God of Love, if one is promoting and condoning and thus serving, Love's polar opposite, which is lust.

Judge Gorsuch is not the first to be vilified for defending authentic Love, nor will he be the last, but this does not change the fact that Only The Truth of Love can set us free, and for recognizing this truth, he should be commended.

Godspeed!

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N.D.
on April 06, 2017 at 14:32:29 pm

"Rather, what many people of differing political persuasions have allowed to delude themselves is that the essence of the judicial process is outcome focused, rather than process focused."

No doubt, for this reason we should not want the filibuster to be filibusted. There is a difference, however, between an appropriate use of the filibuster that is principled and an inappropriate use of the filibuster that is partisan. That difference makes all the difference:

http://www.history.com/news/the-last-time-a-scotus-nominee-was-filibustered-yes-its-happened-before

http://www.americanrhetoric.com/MovieSpeeches/moviespeechmrsmithgoestowashingtonfilibuster1.html

https://m.youtube.com/watch?v=HX8aFpnWxPA

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N.D.
on April 06, 2017 at 14:34:31 pm

“Rather, what many people of differing political persuasions have allowed to delude themselves is that the essence of the judicial process is outcome focused, rather than process focused.”

No doubt, for this reason we should not want the filibuster to be filibusted. There is a difference, however, between an appropriate use of the filibuster that is principled and an inappropriate use of the filibuster that is partisan. That difference makes all the difference:

http://www.history.com/news/the-last-time-a-scotus-nominee-was-filibustered-yes-its-happened-before

http://www.americanrhetoric.com/MovieSpeeches/moviespeechmrsmithgoestowashingtonfilibuster1.html

https://m.youtube.com/watch?v=HX8aFpnWxPA

The odds being 100% to 0.

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Nancy D.
on April 07, 2017 at 10:49:40 am

Fair enough - but a thought:

In today's environment, being partisan does not necessarily rule out being principled.

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gabe

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.