The Senate confirmation hearings for Judge Ketanji Brown Jackson’s nomination to replace retiring Supreme Court justice Stephen Breyer started on March 21, and will last several days. After that, her nomination will proceed to the floor of the U.S. Senate, where a majority vote will determine whether she will be confirmed to her new position.
While all federal judges hold important positions and issue impactful legal decisions, there is no tribunal that can impact the entire country like the U.S. Supreme Court. Even though they decide only about 60 – 75 cases per year, those cases have, for the entirety of our history, included constitutional issues of the highest order – slavery, desegregation, affirmative action, abortion, religious freedom and marriage, just to name a few.
Unfortunately, however, we’ve witnessed Judiciary committee hearings over the last 40 years that have devolved into personal attacks and accusations that have tarnished the reputations of both the nominees and their accusers. Think Robert Bork, Clarence Thomas, Samuel Alito and Brett Kavanaugh, for example.
In the case of Bork, the smear tactics of Senator Edward Kennedy (i.e., “Robert Bork’s America”) worked so well that Bork’s name evolved into a verb – as in “borking” – after his nomination was defeated. The other three are, of course, currently on the court, although the images those confirmation hearings left us with – Thomas’ famous “high-tech lynching” quote in 1991; Mrs. Alito being reduced to tears behind her husband due to the accusations being flung his way by senators in 2006; and Christine Blasey Ford’s accusations of sexual assault in high school against Kavanaugh in 2018 – won’t depart from the national psyche anytime soon.
If there is a valuable focal point to the typical confirmation hearing, it’s when the questioning gets down to things that matter, such as the nominee’s judicial philosophy.
Why is that important?
A judge’s judicial philosophy tells us how the jurist approaches a legal question involving the interpretation of constitutional provisions or laws passed by Congress. Most laymen would be surprised to learn that there is no universal standard passed down over the centuries as to how a judge should approach a question of interpreting the language of a legal text. There are linguistic tools that have been developed and passed down to assist judges, but no over-arching philosophy of how to begin when confronted by a law that the parties appearing before the court are suggesting supports their arguments.
The two major competing philosophies currently in use are the originalism/textualism viewpoint, whose most well-known proponent was Justice Antonin Scalia, and the “living Constitution” approach, which has evolved over the years.
Originalism/textualism is considered the “conservative” approach to interpreting the Constitution and the nation’s laws. A judge taking this approach looks first at the text of the legal provision involved in the case to ascertain its meaning. If it’s clear on its face, the judge merely applies that plain meaning to the facts of the case and renders a decision.
If, however, the text is ambiguous and can’t be understood using any of the “canons of construction” that judges typically use, then an originalist judge would attempt to resolve the ambiguity by trying to ascertain the original understanding of members of society at the time the constitutional provision or statute was adopted. If the case involved the First Amendment, for example, an originalist would look at the historical writings of people around the time the Constitution was ratified; if there’s a 14th Amendment question, an originalist would look at the history of the provision and its understanding from the late 1860s.
And, it should be said, if neither textualism nor originalism arrives at a confident answer, a judge would then conclude the matter is something best left for the political process to decide, since judges should not be the ones to determine what the best “policy” ought to be. The Constitution leaves that up to the people, through their elected representatives.
A judge who believes in using the “living Constitution” approach – or variations such as Justice Breyer’s “active liberty” approach – believes that a judge should use a more flexible and adaptive interpretation of the Constitution’s words.
According to U.S.Legal.com, “Living Constitution is a term used to describe the Constitution’s ability to change to meet the needs of each generation without major changes. … It is based on the notion that the Constitution of the United States has relevant meaning beyond the original text and is an evolving and dynamic document that changes over times.
“Therefore, the views of contemporaneous society should be taken into account when interpreting key constitutional phrases.”
How do the two different interpretational approaches play out with regard to an issue such as abortion?
To the originalist/textualist, a conservative judicial approach, the Constitution is silent with regard to abortion, and offers no support for those claiming, as seven justices in Roe v. Wade did, that abortion is a constitutional right.
A living constitutionalist, on the other hand, might conclude the “right” to abortion is contained in the “penumbras, formed by emanations” of other constitutional rights, as Justice William O. Douglas wrote in Griswold v. Connecticut, a Supreme Court decision from 1965 that paved the way for the court’s decision in Roe eight years later.
The living constitutionalist philosophy, considered a liberal approach to judging, has created “rights” to abortion and same-sex “marriage,” for example, that don’t exist anywhere in the text or historical understanding of the Constitution.
Justice Scalia thought such subjects, on which the Constitution was silent, were for the people, not judges, to determine.
“Why would you think these nine unelected lawyers living in a marble palace have their thumb on the pulse of the American people so that they know what the evolving standards of decency are? I don’t know what they are. I’m afraid to ask,” Scalia told a Princeton University audience in 2012.
Originalism/textualism is meant to keep judges accountable. “If you show Scalia this is what the Constitution originally meant, you got him. He’s handcuffed. He can’t do the nasty conservative things he would like to do to the country,” the justice said with his trademark good humor.
Back to Senate confirmation hearings. They’re important, and sometimes combative, because of the clash of judicial philosophies on display. And since those philosophies also generally align with the values of the two dominant political parties in the country, Judiciary committee hearings become lightning rods for battles over nominees.
Conservatives prefer originalist/textualist judges who stay in their lane, leaving contemporary issues, on which our founding documents are silent, to the people and their elected representatives to decide. Liberals, on the other hand, tend to view judges as “enlightened” individuals who can and should “update” the Constitution with respect to such issues as abortion, homosexuality and whatever else might come up down the road.
If you get a chance to watch any of Judge Ketanji Brown Jackson’s confirmation hearings, listen for questions about “originalism” and “textualism” and “living Constitution,” and see how the judge responds.
Photo from Reuters.