Judge Brett Kavanaugh testifies before the Senate Judiciary Committee, September 4, 2018 (Patsy Lynch/Alamy Live News).How Our Confirmation Wars Resemble the English Civil War
Image: Tung Cheung / Shutterstock.comDemocrats Need a New Supreme Court Nomination Playbook
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.
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.
