Once you consider someone who doesn’t have a long judicial record, or at least academic writings to the same originalist‐​textualist effect, it opens the door to the sort of presidential discretion that has led to misfires in the past. Cato Institute

How we interpret constitutional text depends on our larger understanding of what kind of government the Constitution brought into being, as well as our understanding of more specific concepts such as “the executive power” or “equal protection of the laws.” Here text is helpful, but only suggestive. They insist that we are either textualists following original meaning or are simply making things up. The judiciary thus affects public policy more than it did before.

Since then, there hasn’t been a single voice vote, not even for the five justices confirmed unanimously or the four whose “no” votes were in the single digits. But the problem is that there aren’t too many progressive originalists or conservative living‐​constitutionalists, at least not in any way where the ideological appellation doesn’t override the philosophical one. The short answer is no. “It’s a war,” Leonard Leo, a Trump adviser on judicial nominations who now chairs the public affairs firm CRC Advisors, explained to me, “and you have to have troops, tanks, air and ground support.”. Scalia’s answer did not rest on constitutional text.

The real problem, as he saw it, was that not being able to openly discuss ideology led to a search for scandal. This was more evident before considerations of judicial philosophy became standard practice, when Bork was an outlier. This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Most people know that Gorsuch got the Supreme Court bid because Republicans held up President Obama’s pick for Scalia’s replacement, Judge Merrick Garland. OPINION A judicial undoing project With Barrett, as with Gorsuch and Kavanaugh, the administration has ceded — no, outsourced — the nominating process to the Federalist Society. To a certain extent, the politicization of judicial appointments has tracked political divisions nationally—and confirmation controversies are hardly unprecedented over the long sweep of American history.

With Barrett, as with Gorsuch and Kavanaugh, the administration has ceded — no, outsourced — the nominating process to, Graham lauds Barrett for ‘unashamedly pro-life’ beliefs as second day of questioning kicks off, beyond its plausible meaning to save the statute, Tara D. Sonenshine: Judge Amy Coney Barrett’s nuanced views on Roe v. Wade may trip up Democrats, Indiana Supreme Court Judge Myra C. Selby, Richard North Patterson: The man behind Trump’s conservative judicial nominees, That’s a great idea — you’re creating a brand. The entire reason Donald Trump released a judicial shortlist in 2016 was to convince Republicans, as well as cultural conservatives who may otherwise have stayed home or voted Democrat, that he could be trusted.

Let’s ask the experts. The conservative legal movement, meanwhile, has learned its lesson from previous judicial disappointments; “no more Souters” means a nominee has to have a proven record of commitment to originalism and textualism, not simply center‐​right views and affiliations.

Does the Constitution invite the protection of unenumerated rights? There are many factors going into the contentiousness of the last half‐​century: the Warren Court’s activism and then Roe v. Wade, spawning a conservative reaction; the growth of presidential power to the point where the Senate felt the need to reassert itself; the culture of scandal since Watergate; a desire for transparency when technology allows not just a 24‐​hour media cycle but a constant delivery of information and opinion; and, fundamentally, more divided government. So constitutional text was subordinated to Scalia’s fear of judicial lawmaking.

The short answer is no. Scalia insisted that it didn’t.

This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Recently, the court’s conservative majority held that the requirement that public employees pay agency fees to support their union violated the free speech rights. Let Texas be Texas and California be California. Well, that taboo no longer exists—which is a good, honest thing, because vetting a nominee's judicial philosophy is important—and yet we still got the Kavanaugh hearings.

But let’s not forget, as Justice Neil M. Gorsuch put it in somewhat different circumstances, to talk about the arcane matter of the Constitution. At the same time, the inability to object to qualifications has led to manufactured outrage and scandal‐​mongering. Barrett, in an article entitled “, But this undoing project is broader — it’s a return to an era decades ago, when a conservative pre-New Deal Supreme Court used a contested constitutional doctrine about freedom of contract — the right of workers and bosses to contract for the terms of employment — to invalidate statutes requiring improved working conditions, higher wages, and limited hours. Today’s fights transcend any particular nominee or even president, growing and filtering into the lower courts. Well, that taboo no longer exists—which is a good, honest thing, because vetting a nominee’s judicial philosophy is important—and yet we still got the Kavanaugh hearings. 1000 Massachusetts Ave. NW As a judicial brand, this “undoing project” is not remotely conservative, in the usual sense of the word; it aims to undo decades and decades of American constitutional law.

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The Institute for Justice, a libertarian organization, says that refusing to reconsider precedent in the interest of “judicial restraint” is wrong. For most of the republic’s history, judicial controversies tended to revolve around either the president’s relationship with the Senate or deviations from shared understandings of the factors that go into nominations for particular seats—especially geography and patronage.

In the past, no matter who the president was, the pipeline for judicial appointments was wide and often bipartisan, reflecting the range of acceptable views in the mainstream of judicial thought. Even Thomas Jefferson cautioned against treating the Constitution with “sanctimonious reverence,” too sacred to be touched, rather than “keep[ing] pace with the times.”.

Even before the president was sworn in, his campaign announced a “slate” of nominees which, as Ponoma College professor Amanda Hollis-Brusky describes, had been “curated” by the Federalist Society. And the left can’t hear it. But aside from clauses such as the mandate that the president be 35 years of age, almost all constitutional interpretation rests on unwritten understandings. Post Opinions Staff: What does Kavanaugh’s paper trail say? For that matter, this turbulent modern period has seen few outright rejections—Nixon’s two in 1967–70 and Bork in 1987 are the only ones, in 52 years—with pre‐​nomination vetting and Senate consultation obviating most problematic picks.



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