Replies

Do you have the list of "known originalists?"

Hey, Bork is a prominent known originalist.

Who belittles the 2nd Amendment.

Whereas Miers has vigorously defended the right to bear arms.

But I guess that doesn't matter if we can get an elegant originalist whose elegance obstructs his originalism. But he sure sounds good doing it...

Try reading a few opinions by Judges Alito, Garze and Edith Hollans Jones, to name just a few of the actually qualified people that could have been nominated. Also any opinion by Justices Scalia or Thomas will give you an idea of what a decision by someone who uses an originalist philosophy of judicial interpretation. Justice Scalia's dissent in the recent 10 Commandments case is particularly good in my humble opinion.

The Roberts and Miers nominations have continued, and in fact, worsened this tendency of Presidents to put forth nominees with almost non-existent paper trails. What this does is to prevent anyone from making reasoned judgements on their judicial philosophy. That is not an unimportant consideration. The Senate would have been perfectly justified to reject both nominations on that basis alone.

In Judge Roberts case, no one that I'm aware of was claiming that he wasn't qualified to sit on the Court. But, that also isn't the only criterion on which potential nominees should be judged. They should also be judged on their philosophy of interpreting the Constitution. Justice Roberts' record of opinions was too sparse to make that judgement. And the way that the confirmation hearings have evolved, you really don't get much information at all out of the nominee. They fall back on what is now called the Ginsburg standard. It wasn't always that way. As late as the 60's judicial nominees routinely gave answers as to the way they would have decided particular cases.

The way things stand now, we are sending very pointed messages to future judges. They are being shown that, if they want to have any chance at advancing in their profession, they have to be secretive and not give any indications of what their method of judging the law is. This is troubling for many reasons, but two in particular come to mind. We're going to see a dumbing down of the judiciary. The second reason is it implies that originalism (which is different from conservatism in a judge) can't be defended, so we have to hide it. It's another strategy born out of perceived weakness.