The Volokh Conspiracy
[Orin Kerr, July 2, 2005 at 2:52pm] Trackbacks
Confirmations and Constitutional Theory:
Randy's lessons below are interesting ones, but I'm not so sure I agree with him. In any confirmation process, the Senators try to get a sense of what a nominee is likely to do if the Senate agrees to give that person the tremendous power of the office to which he or she has been nominated. Constitutional theory is clearly relevant, but it's only part of the picture. Few judges are constitutional theorists, and those that try to be usually aren't very consistent or very good at it. Given that, I can see why the nominations debate would go beyond questions of constitutional method.
WB:
As I read Barnett's post, I don't think he's saying that constitutional theory is the whole picture or that questions should not stray from questions of constitutional theory. As I read it, he seems to be suggesting an approach for questioning a judge's views on constitutional theory, and saying that confirmation should not devolve into personal attacks and outcome-based litmus tests.

My question is, what else should the process focus on? Productivity, possibly? Particular decisions that seemed based on personal preference rather than ability to apply the law? Ability to play well with others?

I'm also reminded of a quote that Will Baude posted a while back from Alex Kozinski.


Well, what the hell are you supposed to ask? Who do you like to sleep with? Girls? Boys? Will you sleep with me? Of course you'll ask them how they'd rule!


I wonder what people think of this. What is really supposed to come out of a confirmation hearing other than grandstanding?
7.2.2005 3:19pm
aslanfan (mail):
Here’s a question I hope someone asks -- Which method of constitutional interpretation do you find to be more destructive: the Aron-Neas result-oriented, law-as-politics, “living Constitution,” policy-preference approach to constitutional interpretation, or the Clarence Thomas originalism-uber-alles, no-precedent-is-safe, societal-reliance-and-embedded-expectations-be-damned approach?
7.2.2005 3:55pm
Kevin Murphy (mail) (www):
Good questions:

Do you believe that the 2nd Amendment confers an individual right?

Which is the better arbiter of emergent unenumerated rights? Federal courts, state courts, Congress or state legislatures? How do the 9th, 10th and 14th Amendments interact here?
7.2.2005 4:51pm
John Jenkins (mail):
I think we are giving too much import to the "advice and consent" power. The inquiry should be as to qualifications, not "will you rule the way I want you to on this issue."

I recognize that this is somewhat polyannaish, but no judge could in good conscience say how he or she would rule in a given situation because the facts and the law might be different.

If the Senate confined itself to determining the qualifications of the candidates (education, background, are you a felon, etc.) then at least some of the unnecessary combatitiveness could be removed from the process. The fact is that the constitutional order presumes that the president can appoint those people whom he chooses, and absent patent inability or background issues (the aforementioned felonies, ethical lapses, etc.) those people should be confirmed by the Senate.

[all of that aside, for pure politics the President should appoint a sitting Senator from a state with a Republican governor to get the advantage of Senatorial courtesy which has traditionally been helpful, John Tower notwithstanding].
7.2.2005 5:44pm
Al Maviva (mail):
As a practitioner, I prefer judges who follow the plain language where possible, and who have an ascertainable method of discerning the law. The law has precisely zero predictive value when it is construed by judges who believe that the text is alive, as if it were a swarm of ants. Living constitutions and flexibly interpreted statutes are the bane of my life when it comes to client counseling. I want answers, not interesting and challenging philosophical debates about whether "must" means "shall" or "may." It is stunning to me that people still believe the fiction that the Supreme Court interprets the Constitution. They are simply a super legislature that makes it up as they go along - as distinct from the circuit courts, most of which at least attempt to bind themselves to the text of the law which practitioners rely on.
7.2.2005 9:51pm

PicoSearch
Help