Nice Debate About Confirmation Questioning:
There is a nice debate on LegalAffairs Debate Club between Erwin Chemerinsky and Brannon Denning on the sorts of questioning that Senators should engage in during Supreme Court confirmation hearings. Brannon is off to a strong start. Here is his closing shot:
However, as I am sure you would agree, it is often quite difficult to answer constitutional questions in the abstract. Indeed, you wrote that "[a] nominee should not say how he or she [would] vote on a particular issue because . . . that will be a product of the specific case and the arguments presented." But it seems to me difficult to relate abstract views "on crucial constitutional issues of the day" to a nominee's likely performance in the context of a specific case. Thus, recent Supreme Court confirmation hearings have a Kabuki quality about them. Senators ask vague, abstract questions; nominees attempt to respond in a manner calculated to communicate the least information without offending the questioner. As a result, recent nominees to both the Supreme Court and the courts of appeals all admire Justice John Marshall Harlan II, judicial restraint, and all agree that Korematsu, Plessy v. Ferguson, Lochner, and Dred Scott are the worst Supreme Court decisions ever handed down. And senators have demonstrated a reluctance to be satisfied with nominees' attempts to differentiate their personal views on a matter, like abortion or gay rights, with their acceptance of the court's decisions in these areas as a matter of law. Some senators, in fact, have even shown a reluctance to accept the distinction you proffer between stating one's views and not committing one's self to declaring an intent to vote one way or the other.

Thus, I'd ask what kinds of questions would you propose that could plumb a nominee's views without asking him to commit, in advance, to particular positions? And what sorts of answers should be seen as disqualifying
The debate will last all week. Some may also be interested in reviewing my debate with Cass Sunstein on the so-called "Constitution-in-Exile" movement--which is not irrelevant to today's debate--which you can find here.
myalterego (mail):
Professor Denning asks what questions a nominee should be asked if Senators can't realistically expect an answer to questions about how a nominee would vote in a given case. I think that there are some pointed questions that shed light onto a nominee's proclivities.

First, a nominee should absolutely be asked about his view of stare decisis. How compelling should it be? What justifies overruling a previously decided case? Compare Justice Thomas (see Newdow, McCreary, etc) with Justice O'Connor (see Casey). Of course everyone would know this is a proxy for Roe v. Wade, but it's a broad and more neutral way of finding out the answer, and it doesn't lock a nominee in to something if a case has facts that don't warrant following a previous decision.

Second, Professor Chemerinsky is right when he says that a nominee should be asked about his view of unenumerated rights. I mean this in a very broad sense. Even ignoring the idea of penumbrae, he should be asked whether it is fair to look at the Constitution as implying powers or rights that are not textually explicit - for instance, through structure or purposeful adoption of broad language. This could cover questions from the Eight Amendment to federalism/Commerce Clause to gay rights and so on. If he claims to be an originalist (which I don't believe Roberts is, at least not to the likes of Justices Scalia or Thomas), he should be able to explain why (since there is no clause in the Constitution that says "this document shall be interpreted by judges trying to divine the intent of the framers") and explain when that originalism should give way to precedent (Miranda?).

These are just a couple suggestions that if a nominee were to answer openly and fully, would give Senators a decent opportunity to evaluate his positions.
7.26.2005 9:55am
Christopher (mail):
Dr. Barnett,
I am both young and in no way trained in law or constitutional history so my questions/views on the topic may be extremely naive, but having read this blog for some time as well as many of your articles posted on your website (and most recently the debate you have linked above) I have a few questions. These questions are very important to me since I find myself enticed and intrigued by originalism, but at the same time deeply afraid of it. In any case if you can find the time to respond, however briefly, I would greatly appreciate it.

1.) The Constitution, having to be a compromise document at the time of its ratification, will be very difficult to interpret in some ways. In certain ways it seems that the founders tried to slip in strong protections of liberty, but due to these being unacceptable to the politics of the time allowed them to go uninforced (e.g. is it not true that 1st ammendment protections of individual speech were not actively protected at all until ~1900?). How would an originalist deal with this?

2.) It seems that originalism demands a much greater reliance on the ammendmant process, yet ammending the constitution seems to be much harder even than intended due to people's strong psychological resistance to tampering with our ruling document. I don't think that anyone believes that private ownership of all equipement necessary for a light infrantry group including not just automatic weapons but LAWs, field morters, shoulder launched stinger missiles, etc. should be allowed, but this seems rather the minimum of what is demanded from any rational reading of the 2nd ammendment. Yet how many people will support a constitutional change to the 2nd ammendment? This is obviously a practical/political problem, but one that needs to be addressed.

3.) It seems to me that your presumption of liberty is the key to an originalism that I find acceptable, and not coincidently one that seems consistant with the framers' vision (given the often cited reluctance of many of the framers to draft a bill of rights). How many originalists actually believe in the idea of the presumption of liberty? Scalia, for instance does not seem to adhere to it (I know he prefers the term textualist or some such to originalist). The portions of his dissent in Lawrence vs. Texas that I have seen quoted seem rather diametrically opposed to a presumption of liberty, to name one example. You claim that originalism has the advantage of being grounded in the text and not in the individual opinion of justices, yet how do those of us as yet unsold on the philosophy square this with the fact that the most noted originalists (Scalia and Thomas) seem completely unwilling to protect any unenumerated rights despite their explicit existance in the constitution? How do you reconcile this in your mind? Do you support originalists who do not subscribe to a presumption of liberty? Would you still refer to someone as an originalist if they ignore this portion of the constitution? An originalist without a presumption of liberty would seem to cede to the federal government unlimited police power. What good is rejecting government's bid for total power within the commerce clause if you accept it within the context of passing "laws based on moral choices"?

I'm sorry this post has already grown rather long, but if you could help to clear up the confusion of one layperson on this rather important issue I would be very greatful.
7.26.2005 12:35pm
Jason DeBoever (mail):
Fantastic arguments. To me, at least, it was clear that you were sticking to a principle and Sunstein was reciting dogma.

And I suspect it would be very easy for most originalists to find an "originalist interpretation" with which we disagreed. The most recent is that I don't think too many of us want California-style Marijuana laws, but most of agree with Justice Thomas' dissent.

One issue I had is the "neutral definition" of activist. Sunsteins description is intellectually dishonest, and simply contrived as an excuse to insert the bit about the Renquist courts overturn rate, but I think your definition comes a little short of neutrality as well.

I think a neutral definition is that an Activist Judge is EITHER defined as "judges who discard or ignore the text of the written Constitution" OR (if you are in agreement with Sunstein) "judges who discard or ignore Constitutional precedent". That fundemental difference in understanding is what has turned the label 'Activist' into a meaningless slander that both sides now throw at each other.

*disclaimer: I have no legal training of any sort, whatsoever.
7.26.2005 1:04pm
Jason DeBoever (mail):
I realize my last comment relates not to the main subject of the entry, but to the note at the bottom, sorry for any confusion!
7.26.2005 1:06pm
David M. Nieporent (www):
Speaking of the "Constitution in Exile" meme, Jeffrey Rosen's pushing it again in this week's New Republic, still claiming that libertarians use the term.

"Nothing in Roberts's [student] note suggested a desire to resurrect what some libertarian activists call the Constitution in Exile --"
7.26.2005 6:56pm
Jacob Lister (mail):
Excellent debate.

I've seen very little discussing varieties of originalism. When there are two possible original meanings, who has the more authentic original meaning? Is it up to the individual justice or judge? For example, in Lynch v. Donnelly, Justice Brennan's dissent suggests that the original public meaning would not have allowed a Christmas nativity scene, which seems highly persuasive in that it relies specifically on public views of the celebration of Christmas during the formation of this country. But several years later, Justice Scalia took the contrary position by joining Justice Kennedy's dissent in Allegheny County v. ACLU. Without debate about how and why those choices are made, it looks like the justices just chose a result that conforms to their view of religion and justified it with originalism.

I also agree with Prof. Barnett that originalism isn't "conservative," and Prof. Sunstein seems to agree by noting that liberal Justice Black often used originalism. But the two movements are closely intertwined. A lower court judge following originalism (if there was no controlling Supreme Court precedent) to reach the same conclusion that Justice Brennan came to in Lynch may eliminate any chance of advancing to higher chambers. Unless, of course, the Democratic party embraces originalism. Ultimately, most non-lawyers don't care about how a decision was reached, only what the result was. And as long as that remains the case, judges -- being political appointees -- are going to have incentive to conform their results to certain popular opinions.

Christopher's points above state very well some of my questions and concerns with originalism, particularly his third point. What happens when Justices Scalia and Thomas disagree, do they play rock-paper-scissors? Perhaps this is because originalism still seems to be in its nativity, and there aren't enough adherents to make a distinction between libertarian originalists or textualists or what have you.
7.26.2005 11:14pm