Bench Memos

Law & the Courts

Blackman/Barnett Guidance on Supreme Court Nominations—Part 1

In a new Weekly Standard essay, law professors Josh Blackman and Randy Barnett set forth “five important lessons that should guide future [Supreme Court] nominations” by a Republican president. I agree with much of what they have to say, but I see some serious omissions and also have some disagreements. At bottom, I don’t think that their guidance is likely to prove very helpful.

Let’s consider their lessons one by one, in this post and a follow-up:

1. “Bruising confirmation battles are worth the political capital for a lifetime appointment.”

I entirely agree with Blackman and Barnett that “[w]hatever political capital [is] gained … to avoid a bruising political fight is entirely dwarfed by the impact a justice has on our legal order over three decades.” Alas, that wisdom doesn’t readily translate into appealing political advice. The sorry reality is that presidents and their political advisers will always be tempted to give undue weight to short-term considerations. Presidents don’t reap much of the political benefit, and don’t pay much of the political cost, of how a nomination turns out down the road. How much retroactive criticism, for example, did President Reagan ever receive for his terrible nomination of Sandra Day O’Connor in 1981?  

In other words, to achieve what Blackman and Barnett rightly want, it’s of little help to advise a president that the bruising he will take will be worth it long down the road. Instead, we need to seek out presidential candidates who show that they care about getting the Supreme Court right. We need to surround them with legal advisers who can counter the bad advice that political advisers will be inclined to give. And we need to condition the political environment so that a president won’t take a heavy bruising for a good pick and that he will instead fear a heavy bruising for a weak pick. (That’s very much what happened in 2005, and the failed Harriet Miers nomination provides a promising lesson.)

2. “Paper trails are an asset, not a disqualification.”

Blackman and Barnett argue that “SCOTUS-wannabees” who “spend their careers seeking the approval of others” are “the exact sort of people who will be cowed by the Beltway social pressures and the New York Times editorial page.” As someone who long ago made the decision not to care about my own confirmability, I heartily agree. But it’s simplistic to maintain that paper trails are an asset. The political reality is that it depends what the paper trail is.

3. “Reject clichéd calls for ‘judicial restraint.’”

I partly agree, partly disagree with Blackman and Barnett. Like every other term of political discourse, “judicial restraint” and “not legislating from the bench” can be misused and distorted, and a nominee’s promise to show those qualities means little or nothing. I entirely agree that a president, in selecting a Supreme Court nominee, needs to “focus instead on what a prospective nominee’s proven track record and paper trail … say about his or her constitutional philosophy.”

But Blackman and Barnett resort to a false dichotomy when they argue that the “heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about ‘strict constructionism’ or ‘calling balls and strikes’ during a confirmation hearing.” The “heart of the inquiry” should be whether the nominee is willing to enforce the rights, and the limits on governmental power, that are in the Constitution and not invent rights and limits that aren’t in it. On matters to which the Constitution doesn’t speak clearly, a sound understanding of judicial restraint (see “Third” here) is essential.

Further, in making the public case for the confirmation of a Supreme Court nominee, the “clichéd talking points” that Blackman and Barnett object to have proven very effective, as the Left has recognized to its dismay. It might be good to supplement them, but it makes no sense to abandon them. (I am glad that Blackman and Barnett aren’t proposing substituting the vapid label of “judicial engagement.”)

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