The Only Two Questions We Need to Ask a US Supreme Court Nominee
For weeks we’ve been in a frenzy of United States Supreme Court nominee media vetting. There has been an attempt to Bork the nominee with a slander that didn’t work against Thomas: sexism. Apparently, one of his former law students accused him of discussing how women manipulate maternity leave. It failed because, one, the outlets did not disclose facts about the former student that were relevant to her credibility, and two, most women in corporate America are familiar with discussions about whether or not to manipulate maternity leave. It is possibly the most contentious workplace debate, with some women thinking it is their right to manipulate maxium coverage regardless of their employment intentions, and others thinking the tactic gives professional women a bad reputation. But the discussion is real and common and definitely not some sexist, out of bounds, topic.
Other than that drama — this time or the next — the analysis has not changed. For the “sophisticated consumer of news” (see below) the vetting of nominees begins well in advance of the nominations, and it hasn’t been any more fun or easy than consuming the regular news of late.
Back during the campaign when newly presumed Republican candidate Donald Trump faced difficulties unifying the party, the silver lining he could offer balking conservatives was a good Supreme Court nominee to replace the late Antonin Scalia. So the Heritage Foundation gave him a list. It was a good list. Trump promised he would pull from that list if he won the White House, and thus some conservatives did rally to his side.
When the election surprise came upon that night in November, the lawyer/commentators over at SCOTUSblog began a series profiling all of the judges on the list. For weeks now, they have posted comprehensive surveys of the judges’ bodies of work fit for the sophisticated consumer of news.
I am such a consumer of news, a lawyer/commentator in fact, and frankly, the series had too much information even for someone like me. I do not want to care about what any of the potential justices thinks about pleading standards.
(The lawsuits and motions lawyers file with the court, those are pleadings and there are many rules about what they must or may contain, their fonts and sizes, etc. I did mention that the SCOTUSblog surveys were comprehensive, yes?)
Lately, the deluge of information isn’t just in law. The problem is pervasive in news in general, as Michael Tracey noted well after the weekend of The Airport Cases. (HT Josh Blackman for naming the weekend’s lawsuits about immigration.)
More than once over the past few days, I have been asked both online and off: “How in the hell am I supposed to keep up with everything that’s going on? How do I, as a non-professional, somewhat casual consumer of news, figure out how to process all this information constantly being thrown at me from every direction, knowing that some of it will be phony hysterics and misdirection, while some of it will also be gravely serious and demand my attention?”…
You have to be an extremely sophisticated consumer of news in order to successfully parse the present situation. There’s a never-ending deluge of sensory data flying at you 24/7, and people who understandably take a layperson’s attitude toward “the news” will simply glance at a retweet or headline, and then assume that the essence of the story is true because it’s coming from, say, the Washington Post.
In legal news stories, this trend begs the question — to me at least — why do we care about the specifics of a judge’s rulings for every area of law? Aren’t there general principles for vetting judges so that everybody doesn’t need to have at least a first year law student’s education in order to do more than guess whether or not they support a canidate?
The Two Guidelines
Happily, there are general principles for vetting. We’ve only needed to care about all of the details because of a line of cases that have expanded federal power, leglislative and executive, far beyond its constitutional boundries. Well, that line and another, related, set of cases that have revived the rationale of substantive due process. The term is rarely used because the reasoning is historically unfavored, but in a nutshell, it is a complicated bit of legal reasoning that allows the Justices of the Court to play with fundmental rights — elevating some things and demoting others on the whim of 5 votes.
In the status quo, one looks at the detailed SCOTUSblog profiles and gets exasperated with theoretical swaps. ‘Judge Joe is great on issue X and Y, but I don’t like his position on Z. Judge Jane, however, is great on Y and Z but clearly wrong about X.’ I say “theroetical” because the single issue analysis is not necessary.
By the Constitution, the federal government does not actually have many of the powers it uses today and the Court should not have become the small council of the nine robed lords. Thus, the analysis for a Supreme Court nominee is actually mercifiully simple. Professor Randy Barnett of Georgetown School of Law laid out the two question test weeks ago.
- Does the nominee use “original meaning” to interpret the Constitution?
- Is the nominee willing to overturn court precedent that conflicts with “original meaning”?
Number 1 is simple and well known. In fact, all of the nominees on Trump’s list are believed to use “original meaning” interpertation, which was one of the reasons conservatives thought the list was good. But question 2 doesn’t get much consideration. This is unfortunate because we have a long line of obstructive cases stretching back to the New Deal and the “switch in time that saved nine.”
If you’ve ever wondered why, for example, Congress held hearings on steroid use in Major League Baseball, the answer is Commerce Clause decisions since the New Deal. The tale is multifaceted and complicated involving the Implied Powers of the Necessary and Proper Clause.
In Con Law, “necessary” doesn’t mean necessary as English speakers understand the term. In fact, the Necessary and Proper Clause is nicknamed the Elastic Clause for it’s ability to stretch to fit whatever the post-New Deal Congresses want to do. Lots of things are “necessary” to regulate interstate commerce, for instance. And by the way, “interstate commerce” doesn’t have to be actual interstate commerce. Theoretical interstate commerce will suffice. So under “necessary” the list of things Congress does has bloomed — like bacteria in a Petri dish.
To restore our constitutional order and to get to the point where we don’t have to care about a potential justice’s every belief and we can allow California to do its thing without Oklahoma holding it back (or vice versa) we need a justice willing to overturn 80 year old precedents, some of which were written under professional duress.
And to get a justice like that we only need to ask two questions.
Finally, something simple.
The Michael Tracey article on journalism quoted above:
And and excellent read from John Davidson on letting California be California.
