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03/24/2022

Dan McLaughlin on Originalism and the Jackson Hearings
Michael Ramsey

At NRO, Dan McLaughlin: Justice Scalia Won.  From the introduction: 

Antonin Scalia may not have lived to reach the promised land, but he won the argument. That is the clear takeaway from the first round of questioning of Judge Ketanji Brown Jackson in her Supreme Court confirmation hearing Tuesday before the Senate Judiciary Committee.

Scalia did not invent constitutional originalism. Edwin Meese and Robert Bork both played important roles in advancing the concept in public, and numerous other scholars worked the vineyards of academia and the judiciary to make the idea intellectually respectable and rigorous. Others such as Clarence Thomas and Amy Coney Barrett have carried the flame of its arguments forward on the Supreme Court since Scalia’s death, sometimes (in the case of Thomas) with more stringency than Scalia himself. But Scalia was its most prominent, insistent, and eloquent exponent from the mid 1980s until his death in 2016. He was originalism’s prophet. Nobody was more identified with the argument than Scalia, who advanced it relentlessly in constitutional law and equally insistently under the label of textualism in approaching statutory law....

Originalism, in practice if not in name, was the predominant framework for interpreting the Constitution until Woodrow Wilson and the progressives advanced the idea of a “living Constitution.” ...

Wilson’s “living Constitution” has been the dogma of Democrats for a century since. But what do they have to say for it in public today, in a public hearing in an election year? Jackson would seem to be the best test case. She has been a regular attendee at conferences of the American Constitution Society and other gatherings of the foes of originalism. Nobody doubts that the Democratic Party and the progressive movement have closed ranks behind Judge Jackson. Left-wing groups such as Demand Justice have poured effort and resources into her confirmation. The people who object the loudest to originalism are all foursquare behind Jackson’s nomination. Nobody did more to organize political resistance to putting originalists on the Supreme Court during Scalia’s lifetime than Joe Biden, and Jackson is his first and possibly only choice for the Court. You would expect her to carry his rebuttal onto the public American stage.

And yet, when senators ask Judge Jackson in a nationally televised hearing to explain how judges should read the Constitution, in a hearing for a job to which she can be confirmed entirely with Democratic votes, she sounds an awful lot like Scalia and the originalists.

And in conclusion:

Is Jackson sincere? There are reasons in her record to be dubious, and if she is confirmed, we can’t and won’t truly know the answer until she is on the Court. But battles of ideas can never be won by those who refuse to fight them in a public forum. The marketplace of ideas is unforgiving to those who won’t sell their own wares. Even when offered the biggest possible public stage to discuss the proper interpretation of the Constitution, neither Judge Ketanji Brown Jackson nor her Democratic supporters could do better than to agree with Justice Scalia.

(Via SCOTUSblog.)