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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.

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