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01/30/2018

John McGinnis on Originalism and the Judicial Confirmation Hearings
Michael Ramsey

At Liberty Law Blog, John McGinnis: Originalism Needs an Adult Education Program.  From the opening:

In the academic world, originalism has become the theory of constitutional interpretation to beat. It has developed a rich and subtle literature both explaining its content and defending its use. As a result of these labors, a large gap has opened between the understanding of originalism within the academy and outside it. That gap was very visible in the confirmation hearing for Michael Brennan for the Seventh Circuit Court of Appeals, because the discussion of originalism was confused and burdened with some elementary mistakes. This is not to criticize the participating Senators, who came of age when modern originalism was not even taught in law schools, or the nominee, who in part was surely just trying to avoid controversy in a very closely divided Senate. But the performance all around suggests the need to make originalism more publicly accessible so that it is not caricatured and undermined.

The discussion began when Senator John Kennedy of Louisiana asked the nominee how to interpret ambiguous provisions in the Constitution. The nominee could have suggested what I think now would be the standard approach among most originalists: that one should follow the best interpretation among the possibilities. Senator Kennedy did seem to acknowledge that there might be ways of resolving ambiguity, such as by looking at the Federalist papers. But he then moved in for what he thought was a devastating question which I paraphrase: With the Federalist Papers you might discover what two Framers thought. What about the other 39?   The nominee who had mentioned in passing that originalism was defined by its public meaning responded to the effect that in that case originalists would roll up their sleeves and work harder.  The better answer is that Federalist papers were public documents favoring the ratification of the  Constitution. Unpublished thoughts and beliefs of the other Framers were not likely to be as relevant to the public meaning of the document, even if we could find evidence of them.  Senator Kennedy seemed to be assuming an old and not widely held view of originalism—that it is a search for the intent of the Framers. ...

Plus further questions from Senators Feinstein and Hirono.  Apart from possible misunderstandings, I'm struck by the extent that originalism has penetrated not just Supreme Court confirmation hearings but courts of appeals confirmation hearings.

Professor McGinnis concludes with this suggestion (among others):

The hearing persuaded me that there needs to be a better way of translating the progress in originalism in the academic world to the public. First, President Trump could send to the Senate an appellate court nominee who has used originalism centrally in his scholarship. That nominee would have no choice but to educate the Senators and though them the public. It is rumored that Professor Nicholas Rosenkranz will be nominated to the Second Circuit. There are many good reasons to nominate such a superb candidate and his capacity for public education is yet another. 

Agreed, and also how about nominating Professor McGinnis?