Bench Memos

Law & the Courts

President Trump, Promise Keeper

President Trump’s announcement on Monday of a new list of judicial nominees was received with acclaim by the conservative legal community as fulfilling a campaign promise to nominate judges committed to the original Constitution. As an originalist legal scholar who has not been shy about criticizing the president in the past, I am obliged to give credit where it is due and to recognize that this promise is one the administration has kept.

The Constitution puts promise-keeping front and center. Everyone who takes office is required by Article VI to make a solemn commitment, by oath or affirmation, to support “this Constitution” — the same one ratified in 1788 and amended only a few times since. That Constitution declares itself the supreme law of the land, the ultimate standard by which other legal claims are measured. In this way, the constitutional oath supplies an unmistakable moral obligation to all those who wield authority, from presidents, legislators, and judges down to the ordinary lawyers who serve as “officers of the court,” not to go beyond their delegated powers under the law. The oath is our constitutional culture’s ultimate common ground.

These obligations would be “parchment barriers,” as James Madison put it, if officeholders could not be trusted to respect them in practice. Last fall, others and I publicly criticized then-candidate Trump, arguing that he had not yet earned the public’s trust. His commitments on judicial nominations, in particular, struck us as ordinary political promises, easily forgotten amid a tumultuous campaign. Although Trump’s list of potential nominees included many jurists with sterling reputations, I had little expectation that he would adhere to it in office.

In practice, however, my prediction turned out to be wrong. In the interests of candor and humility, I must acknowledge that the president and his administration have taken this promise about nominations seriously.

Trump’s first judicial nominee, Justice Neil Gorsuch, was not only among those named on the list but among the most celebrated. Another on that list, District Judge Amul Thapar, was nominated for the Sixth Circuit and has made his commitment to the rule of law clear before the Judiciary Committee. Many of the nominees in Monday’s announcement have attracted similar praise. Michigan’s Justice Joan Larsen and Minnesota’s Justice David Ryan Stras, for example, were among the judges Trump cited as potential Supreme Court nominees; they have now been nominated to the Sixth and Eighth Circuits, respectively.

From my own academic work, I happen to be more familiar with two other nominees — Amy Coney Barrett for the Seventh Circuit and Kevin Newsom for the Eleventh Circuit. Barrett, a widely respected law professor at Notre Dame, has written extensively on the complex relationship between originalism and precedent. Her work makes clear that the original Constitution matters not only to judges, but to every official who takes the oath it prescribes; and she has devoted precise attention to the contours of that obligation. Newsom is well known as an appellate litigator in private practice; but he is also known for a pioneering analysis of the Fourteenth Amendment and its treatment in the Slaughter-House Cases in 1873. His work displays a clear-eyed analysis, an attention to detail, and a dogged willingness to correct longstanding error. These are real lawyers and scholars, not political cronies.

To Madison, a government strong enough to maintain control must be able to control itself. The rule of law, enforced by separated powers as well as the constitutional oath, is one of our chief means of keeping our government in check. In every administration, Republican and Democratic, lawyers and judges are called upon to enforce the obligations our Constitution has imposed since the Founding.

Not everyone who commits to follow the original Constitution arrives at the same view of what it requires. I may not agree on all points with these nominees, and can speak only for myself. But whatever one’s views of the administration, it’s only fair to say that it has already acted with more consideration of the Constitution’s restraints than I anticipated in 2016. In light of my fears from the fall, I am quite happy to see myself proven wrong.

Most Popular

Elections

In Defense of the Electoral College

Senator Elizabeth Warren has joined a growing chorus within the Democratic party in calling for the abolition of the Electoral College. Speaking at a forum in Mississippi on Monday night, Warren said that she hoped to ensure that “every vote matters” and proposed that “the way we can make that happen is ... Read More
Elections

Stick a Fork in O’Rourke

If, as I wrote last week here, Joe Biden may save the Democratic party from a horrible debacle at the polls next year, Beto O’Rourke may be doing the whole process a good turn now. Biden, despite his efforts to masquerade as the vanguard of what is now called progressivism, is politically sane and, if ... Read More
National Security & Defense

In Defense of the Iraq War

Today is the 16th anniversary of the invasion of Iraq, and Twitter is alive with condemnations of the conflict -- countered by precious few defenses. Yet I believed the Iraq War was just and proper in 2003, and I still believe that today. When Donald Trump condemned the war during the 2015 primary campaign and ... Read More