Law & the Courts

Judge Barrett on Textualism and Originalism


Judge Amy Coney Barrett embraces the twin interpretive methodologies of textualism and originalism that Justice Scalia (for whom she clerked) espoused, and she has displayed a thorough and sophisticated understanding of those methodologies.

As I understand Judge Barrett’s use of the terms (which is the same as my own), textualism and originalism are essentially two names for the same methodology. The term textualism arose in the statutory context to counter purposivism, while the term originalism arose in the constitutional context to counter living-constitutionalism (and other non-interpretive methods of inventing constitutional meaning). As Barrett explained last year:

Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law. They did so through legitimate processes, which included writing down and fixing the law. So “[e]ach textual provision must necessarily bear the meaning attributed to it at the time of its own adoption.” And, as with statutes, the law can mean no more or less than that communicated by the language in which it is written. Just as “when a precise statute seems over- or underinclusive in relation to its ultimate aims[,] . . . [a textualist] hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes,” so too an originalist submits to the precise compromise reflected in the text of the Constitution. That is how judges approach legal text, and the Constitution is no exception. [Footnote citations omitted.]

Consistent with the dissents in the Supreme Court’s opinion last term in the Title VII case (Bostock v. Clayton County), Barrett emphasizes that textualism is not literalism and that the distinction between the two concepts “is fundamental to the validity of the textualist enterprise.” She quotes with approval one scholar’s concise explanation of the difference:

Literalism should be distinguished from the genuine search for textual meaning based on the way people commonly understand language. Literalism is a kind of “spurious” textualism, unconcerned with how people actually communicate—with how the author wanted to use language or the audience might understand it. It holds up the text in isolation from actual usage.

In a law-review article from 2016 (“Congressional Originalism,” co-authored with John Copeland Nagle), Barrett explains that originalism “is characterized by a commitment to two core principles”:

First, the meaning of the constitutional text is fixed at the time of its ratification. Second, the historical meaning of the text “has legal significance and is authoritative in most circumstances.” Commitment to these two principles marks the most significant disagreement between originalists and their critics. A nonoriginalist may take the text’s historical meaning as a relevant data point in interpreting the demands of the Constitution, but other considerations, like social justice or contemporary values, might overcome it. For an originalist, by contrast, the historical meaning of the text is a hard constraint. [Footnote citations omitted.]

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Judge Barrett on the Second Amendment

(Carlos Jasso/Reuters)

Judge Amy Coney Barrett’s impressive dissent in Kanter v. Barr (pp. 27-64) illustrates both her fidelity to the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller (2008) and her masterful application of the constitutional methodology of originalism.

Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. As a convicted felon, he was categorically prohibited by federal law and Wisconsin law from possessing a firearm. When he argued that the Second Amendment did not allow those laws to be applied against him, the panel majority rejected his claim.

Based on her extensive marshalling and analysis of the historical evidence, Judge Barrett concludes that the Second Amendment leaves legislatures the power to prohibit dangerous people from possessing guns but that felons do not lose their Second Amendment rights solely because of their status as felons. The federal government and the state of Wisconsin failed to show that disarming all nonviolent felons is carefully tailored to the goal of protecting public safety, nor did they show that mail fraud is substantially related to violent behavior. They also failed to demonstrate that anything else in Kanter’s history or characteristics made him likely to misuse firearms. Therefore, they could not bar him from possessing a firearm.

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This Day in Liberal Judicial Activism—September 25

President Jimmy Carter at the White House, March 1977 (Library of Congress)

1979—Taking advantage of its (and the House’s) massive increase in the number of judgeships a year earlier, the Democrat-controlled Senate confirms on a single day 25 of President Jimmy Carter’s judicial nominees, seven to appellate judgeships and eighteen to district judgeships.

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Judge Barrett’s Record on Abortion


Nothing in Judge Amy Coney Barrett’s record provides any support for the charge that she would indulge her Catholic faith and her reputed pro-life convictions in deciding cases, and one of her votes cuts directly against such a charge.

During her three years on the Seventh Circuit, Judge Barrett has taken part in two proceedings involving state regulation of abortion. Both were decisions by the en banc Seventh Circuit whether to rehear panel rulings.

In Planned Parenthood v. Commissioner, the en banc court, by an evenly divided vote, denied Indiana’s request that it review the panel ruling that held that a state provision regulating the disposal of fetal remains was unconstitutional. Barrett was one of five dissenters. She joined an opinion by Judge Frank Easterbrook that pointed out that the panel had “held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” (See pp. 6-8.) On summary disposition (without even the need for oral argument), the Supreme Court reversed the panel ruling by a 7-2 vote. Justice Breyer and Justice Kagan were part of the majority.

In that same en banc proceeding, Judge Easterbrook (joined by Barrett and three others) stated that he was “skeptical” about the panel’s ruling on another question, the validity of an Indiana provision that prohibits abortions motivated solely by the race, sex, or disability of the fetus. The panel had ruled the provision invalid. Easterbrook opined that Supreme Court precedent did not clearly govern the question. He did not support en banc rehearing on that question, but instead said that he was “content to leave it to the Supreme Court.” (Some folks on the Left object to the fact that he used the shorthand “eugenics statute” for the provision. I’d counter that “anti-eugenics statute” would have been a better shorthand.) The Supreme Court denied review.

In the second proceeding (Planned Parenthood v. Box), the en banc court declined to rehear a divided panel ruling that invalidated an Indiana parental-notification law. (Specifically, that law provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.”) Of the 11 judges taking part in the en banc proceeding, four denied en banc review without comment, two others voted to deny en banc review on the ground that the Supreme Court, having made a mess in this area, should clean up its own mess, and five others dissented. Barrett joined the one-paragraph opinion for the dissenters. It reads:

This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect? Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.

In July, the Supreme Court sent the case back to the Seventh Circuit for further consideration in light of its ruling in June Medical Services v. Russo.

One other abortion-related case: Barrett was on a Seventh Circuit panel that ruled unanimously (in Price v. City of Chicago) that Chicago’s “bubble zone” ordinance, which (in the panel’s summary) “prohibit[s] any person from approaching within eight feet of another person near an abortion clinic for the purpose of engaging in the type of speech associated with sidewalk counseling,” is permissible under the Supreme Court’s ruling in Hill v. Colorado(2000). As the panel explained, the Chicago ordinance is indistinguishable from the Colorado law that the Court allowed in Hill.

The Court’s ruling in Hill was widely regarded as egregious when it was rendered—Harvard law professor Laurence Tribe called the case “slam-dunk simple and slam-dunk wrong”—and it has fared very poorly over the years. As the panel explained, recent Supreme Court rulings “have deeply shaken Hill’s foundation,” and Hill “is incompatible with current First Amendment doctrine.” Nonetheless, Hill “remains on the books and directly controls here.” More broadly:

The [Supreme] Court’s instructions in this situation are clear: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case [that] directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (quotation marks omitted).

That’s basically it. One newspaper article has asserted that Barrett, in her earlier career as an academic, “suggested Roe vs. Wade was an ‘erroneous decision.’” But, as I explain more fully here, that assertion is contradicted by the article it relies on.

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This Day in Liberal Judicial Activism—September 24

Judge Rosemary Barkett.

1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population.

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Liberal Legal All-Stars on Barrett’s ‘Remarkable Intellect and Character’


In 2017, every single Supreme Court law clerk who clerked the same term (October Term 1998) that Amy Coney Barrett clerked for Justice Scalia signed a letter supporting her nomination to the Seventh Circuit. In that letter, the signatories hailed Barrett as a “woman of remarkable intellect and character,” as someone who “conducted herself with professionalism, grace, and integrity” and “was able to work collaboratively with her colleagues (even those with whom she disagreed) on challenging legal questions,” and as “smart, honorable, and fair-minded.”

The signatories include some leading figures in liberal academia: Stanford law school dean Jennifer Martinez, Harvard law professor Noah Feldman, Yale law professor Oona Hathaway, and Stanford law professor Jeffrey Fisher.

To be clear, I am not maintaining that this letter means or even remotely implies that these academics should or will support Barrett if she is nominated to the Supreme Court. Among other things, it’s entirely reasonable to give heavier weight to ideological considerations for a Supreme Court seat, and the letter itself is carefully crafted as only an endorsement for the appellate bench.

That said, the glowing assessments that the signatories offered of Barrett’s intellect and character remain noteworthy. While it’s in theory possible that one of more of the signatories has now developed a different view of Barrett, I’m not aware of any reason why that might be the case.

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This Day in Liberal Judicial Activism—September 23

Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), the Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

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Habeas Clash on Ninth Circuit


Over the dissent of twelve judges, the Ninth Circuit today denied en banc review of a divided panel decision from February (Allen v. Ives) in which Judge William Fletcher, writing for the majority, ruled that a habeas petitioner’s claim that he is “‘actually innocent’ of his sentence as a career offender” should have been entertained by the district judge. (I wondered back then whether Fletcher was butchering both the law and the English language.)

I don’t have time to go deep on this matter. Here is the opening of Judge Ryan Nelson’s 25+-page dissent from the denial of rehearing en banc (beginning on page 14 here; citations simplified):

This case has all the hallmarks worthy of en banc review. The panel majority held that a challenge to a conviction based on a subsequent change in legal classification of a crime qualifies as a claim of “actual innocence” for purposes of 28 U.S.C. § 2255(e). The panel majority’s holding conflicts with Supreme Court precedent in Bousley v. United States (1998); deepens a four-way circuit split; creates an irreconcilable intra-circuit conflict with our holding in Marrero v. Ives (2012); and ignores the statutory text by evading the limits of the Antiterrorism and Effective Death Penalty Act of 1996. Not only has every other circuit rejected the panel majority’s reasoning, but 24 judges on this court—including 19 active judges—have interpreted Marrero to preclude the panel majority’s holding. Yet today we allow just two judges to overrule 19 active judges without en banc review. The panel majority’s opinion and the court’s denial of en banc review disregards the rule of law generally and AEDPA specifically.

The panel majority becomes the first panel to decide that a petitioner legally misclassified as a career offender under the Sentencing Guidelines has a claim of actual innocence—ignoring Supreme Court precedent in Bousley holding “‘actual innocence’ means factual innocence, not mere legal insufficiency.” We now become the lone outlier among all of our sister circuits on a question of exceptional importance. Even our concurring colleagues agree that this case warrants Supreme Court review. Furthermore, we directly contradict our precedent in Marrero, where we held that “the purely legal argument that a petitioner was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch.” The panel majority’s holding also ignores AEDPA’s statutory text. All told, we now add the panel majority’s fundamental legal error to the long list of errors we have made in habeas jurisprudence.

The interested reader will also want to review Judge Fletcher’s response, in his concurrence in the denial of rehearing en banc (pp. 4-14).

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On Judge Barrett and Baseless Claims About Recusal


A year ago, I refuted ill-founded concerns that Judge Amy Coney Barrett might recuse herself from cases involving capital punishment, immigration, and abortion. Because I see similar concerns popping up here and there, I will just offer a few simple points:

1. Barrett has now taken part in cases involving capital punishment. Just two months ago, she joined the ruling in Lee v. Watson that denied Daniel Lewis Lee’s motion for stay of execution. She also joined the ruling in Peterson v. Barr that overturned a district-court order blocking Lee’s execution.

2. In addition to the abortion-protest case that I mentioned a year ago, Barrett has taken part in en banc proceedings in two separate cases involving different provisions of Indiana law regulating abortion (Planned Parenthood v. Commissioner and Planned Parenthood v. Box).

3. Barrett has taken part in so many cases involving immigration that I’m not even going to try to list them. (I discussed some of them in this defense of Barrett from an unhinged attack from the Left.)

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This Day in Liberal Judicial Activism—September 22

Illinois state senator Barack Obama in 2004. (Tim Boyle/Getty)

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

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More on Federal Judicial Center Bias


My post on the Federal Judicial Center’s one-sided panels on ideological issues elicited this email from a concerned FJC employee who fears retaliation and would therefore like to remain anonymous:

I wanted to bring to your attention a more concerning development that I believe shares a common set of themes with your article.

In early 2017, shortly after President Trump made a series of public criticisms of the judiciary, the FJC began drafting and implementing a series of sweeping restrictions on employee’s rights to speak about political issues, participate in partisan events, or donate to political candidates. It did so in tandem with the Administrative Office of the Courts (AO). Prior to that time, the FJC had always employed a more permissive policy than the AO on the ground that this was necessary to preserve researchers’ ability to speak freely on a range of topics. The rationale behind the abrupt change in policy was very unclear, though the primary rationale was supposedly “uniformity” across the judicial branch. It seemed clear to most employees that the actual intent was to muzzle employees at a time when the courts were a sensitive political topic.

Both the AO and FJC political speech policies went into effect in early 2018. In the Spring of 2018, District Judge Christopher Cooper issued a preliminary injunction against most of the AO’s policies on the grounds that these policies violated the First Amendment. Judge Cooper is an Obama appointee, but his decision rested heavily on recent Roberts Court opinions that cut across political lines in strictly scrutinizing restrictions on political activities. I have yet to hear anyone point out a flaw in Judge Cooper’s reasoning.

When Judge Cooper issued his initial ruling, the FJC’s hierarchy informed employees that the agency would ignore the ruling because it was not a formal party to the suit. In April of 2020, Judge Cooper issued a final ruling in the AO case. The ruling is a comprehensive evisceration of all the rationales the government’s lawyers could muster in defense of these policies. Nevertheless, FJC Director John Cooke issued an off the cuff single-sentence statement that the center would not be following this ruling even though he acknowledged that the AO’s policy was “substantially similar” to the FJC’s policy (in fact, most of the rules are identical and a few differ only in minor semantics). The FJC has never given any reasoned explanation for why the rationale in Judge Cooper’s rulings is inapplicable to the FJC’s rulings.  This omission is particularly galling since many of the FJC’s staff are legal experts who advised the agency’s hierarchy that these rules were patently unconstitutional before they were adopted.

Many staff members at the FJC are troubled by the agency’s stance, particularly in light of the fact that “uniformity” had been the stated purpose of the rules. Several staff members have complained to the ACLU (which successfully argued the AO suit) about the FJC’s apparently lawless conduct. Ultimately all the staff members concluded that the risk of retaliation for launching a suit was too high. (The FJC is a small agency and has poor protections against retaliation of this kind; it is not subject to most federal workers’ rights legislation. Also, one of the AO employees who filed suit was laid off during the litigation, which does not fill one with optimism that a lawsuit would be taken with good grace). I am writing anonymously because I also fear retaliation.

I hope you will expose this troubling lack of respect for the constitution in the federal judiciary.

Law & the Courts

Liberal Lockstep Error on Judge Barrett’s Record?


Someone seems to be feeding the same bad talking point to Ruth Marcus and Joan Biskupic.

In 2018, a Seventh Circuit panel ruled (in Planned Parenthood v. Commissioner) that provisions of an Indiana law that (1) prohibited abortions motivated solely by the race, sex, or disability of the fetus, and (2) governed the disposal of aborted fetuses were unconstitutional. Judge Amy Coney Barrett joined an opinion by Judge Frank Easterbrook that dissented from the denial of rehearing en banc on the disposal question.

On the first issue, Easterbrook said that he was “skeptical” that Supreme Court precedent spoke to “the validity of an anti-eugenics law.” But noting that Indiana had not asked for rehearing on that issue (even as 18 other states submitted an amicus brief seeking rehearing on it), he said that he was “content to leave it to the Supreme Court.” In other words, he did not dissent from the denial of rehearing on that issue.

Indiana filed a certiorari petition with the Supreme Court on both questions. The Court, in an opinion captioned Box v. Planned Parenthood, denied the petition with respect to the anti-eugenics provision but, over the dissent of only Justice Ginsburg and Justice Sotomayor, summarily reversed the panel’s ruling on the fetal-disposal provision.

In her Washington Post column, Marcus complains that Barrett “join[ed] a dissent that labeled the law a ‘eugenics statute.’” Noting that Indiana didn’t seek rehearing on that provision, she exclaims: “Talk about judicial activism—the question wasn’t even before the court.” (Emphasis added.)

But the question about the constitutionality of the eugenics provision absolutely was before Barrett’s court. The typical three-judge panel of a federal appellate court exercises only the power delegated to it by the full court. The en banc court has full authority to revisit any issue decided by the panel. It may do so sua sponte, whether or not a party requests it. (It would be very strange to allow a party to limit the en banc court’s authority over a panel.)

What’s more, Marcus’s phrasing obscures the fact that Easterbrook and Barrett didn’t dissent from the court’s denial of rehearing on this issue. So her only surviving objection is to Easterbrook’s adoption of the shorthand phrase “eugenics statute” for the provision. I think that “anti-eugenics statute” would be a better shorthand (Easterbrook uses “anti-eugenics” once), but what is Marcus’s objection? That an individual decision to abort solely for reasons of race, sex, or disability can’t be labeled eugenic? As Justice Thomas points out in his concurring opinion in the Supreme Court’s denial of certiorari, individual abortion decisions can collectively have a eugenic impact—they can “be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.”

Joan Biskupic makes an oddly similar error in her CNN article on Barrett. She contends that the eugenics provision was “not subject to the appeal” and that Barrett and company went “beyond the legal dispute before them.” She also finds it noteworthy that Easterbrook used the shorthand “eugenics statute.”

Biskupic observes that Barrett “dissented with fellow conservatives” on the disposal question but, like Marcus, somehow thinks it not worth mentioning that the Supreme Court, with liberals Breyer and Kagan in the majority, overturned the Seventh Circuit panel on that question.

[9/22: Since initial posting, I’ve added the last paragraph and made a couple of other tweaks.]

Law & the Courts

Mitch McConnell’s Position Is Entirely Consistent with His Position in 2016


In this essay back in January (as well as in this post from last December), I addressed and refuted the charge that Republican leader Mitch McConnell’s vow to keep the Scalia seat open through the 2016 elections was inconsistent with his promise to move promptly to fill a vacancy if one arose this year. Because that lazy charge is widespread, I figured I’d briefly highlight why it’s wrong (and invite any skeptical readers to examine my fuller account, along with linked support, in my essay and post):

1. A defining feature of the 2016 battle over the Scalia vacancy was that President Obama and the Senate majority were from opposing political parties. That, not coincidentally, was also the configuration when Joe Biden in 1992 threatened not to hold a hearing if a vacancy arose and in 2007 (16 months in advance of the election) when Chuck Schumer made a similar threat.

2. In explaining his position at his very first press conference on the Scalia vacancy in 2016, McConnell emphasized this opposite-party configuration:

You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year….

We know what would happen if the shoe was on the other foot. We know what would happen. A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.

3. President Obama’s former White House counsel candidly acknowledged that she would have recommended that Senate Democrats take exactly the course of action that McConnell recommended if (in McConnell’s phrase) “the shoe was on the other foot.”

Addendum: For reasons that puzzle me, some folks seem to imagine that political slogans used by Republicans in 2016, such as “Let the people decide,” were somehow a distinct argument. But those slogans were distillations of the fuller position that McConnell presented, founded on the essential predicate that the Senate majority was “of a different party from the president.” To strip those slogans out of the context that defined their meaning would be like claiming that Republicans who adopted the rallying cry of “Reelect the President” in favor of Richard Nixon in 1972 were hypocrites if they did not support Jimmy Carter’s reelection in 1980.

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Don’t Forget Those Law Professors


Back in March 2016, when the vacancy resulting from Justice Scalia’s death was pending, a group of more than 350 law professors signed a letter to leading senators declaring that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” (Somehow that letter has disappeared from its home on the Alliance for Justice’s website.) In February 2016, a group of 33 law professors issued a similar letter: “the Senate has the duty to ‘advise and consent,” which means to hold hearings and to vote on the nominee.” (On a quick check, I see that some, but not all, of the signatories on the February letter signed the March letter.)

The signatories included lots of leading liberals, such as Laurence Tribe and Erwin Chemerinsky.

For reasons I explained repeatedly back then, the law professors’ position was dead wrong (and, in the case of Tribe and Chemerinsky at least, flatly contradicted positions each had previously taken).

But since the 350-plus law professors identify themselves as “scholars deeply committed to … upholding the rule of law,” I trust that they deliberated carefully on the matter, sincerely held the position that they espoused, and will continue to advance it.

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Confirmation Can Be Both Swift and Thorough


As a senior Judiciary Committee staffer to Senator Orrin Hatch, I was the lead Republican staffer on the nomination of Ruth Bader Ginsburg to the Supreme Court in 1993. President Clinton formally nominated Ginsburg on June 22, 1993. The Judiciary Committee hearing began less than a month later, on July 20, 1993. And the full Senate confirmed Ginsburg’s nomination on August 3, 1993—42 days after she was nominated.

At the time of Ginsburg’s nomination, she had served on the D.C. Circuit for 13 years, had written more than 700 opinions, and taken part in hundreds of other cases. That of course was on top of her many briefs as an ACLU litigator and her numerous speeches and articles. The Senate of course hadn’t had any occasion to examine her record since her confirmation in 1980.

None of this prevented a swift confirmation. Committee Republicans didn’t complain that the process was being rushed.

From the candidates being most talked about for the new vacancy, it appears that President Trump will nominate someone whom the Senate very recently—within the past one to three years—confirmed to a federal appellate judgeship. The Senate Judiciary Committee will already be very familiar with that nominee’s record up until that time, and the opinions that the nominee has written since then will be very small in number compared to Ginsburg’s many hundreds. So there is no reason that the process should take very long.

Data on average time to confirmation of recent nominations obscures the fact that the Senate often operated at considerable leisure (taking the usual recesses, for example), concerned only with acting in time so that the newly confirmed justice would be seated and prepared when the October term of the Court began.