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August 2, 2019|Brett Kavanaugh, Carrie Severino, Christine Blasey Ford, Confirmation Process, Michael Avenatti, Mollie Hemingway

Capra Meets Kafka: Political Intrigue Too Bizarre for Fiction

by Mark Pulliam|

Judge Brett Kavanaugh testifies before the Senate Judiciary Committee, September 4, 2018 (Patsy Lynch/Alamy Live News).
Mollie Hemingway and Carrie Severino—both seasoned Washington hands—expose a tale of political intrigue more hair-raising than the conventions of fiction.

October 2, 2018|Charles I, Confirmation Process, English Civil War, Originalism, Progressivism, Sovereignty

How Our Confirmation Wars Resemble the English Civil War

by John O. McGinnis|

Image: Tung Cheung / Shutterstock.com
As with the English Civil War, our own divides will not be resolved intellectually but through politics.

February 14, 2017|Chuck Schumer, Citizen United, Confirmation Process, Hillary Clinton, Hobby Lobby, Neil Gorsuch, Roe v. Wade, Ronald Dworkin, Shelby County

Democrats Need a New Supreme Court Nomination Playbook

by John O. McGinnis|

The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger  and even Rehnquist eras.

But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act.  More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.

And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.

This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.

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January 22, 2014|Confirmation Process, Originalism

Originalism and the Confirmation Process

by John O. McGinnis|

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.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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