Hugh Hewitt presents what I consider a persuasive argument for rejecting the view (expressed by Ann Althouse) that the selection of Harriet Miers should be considered a breach by President Bush of his promise to appoint Justices like Scalia and Thomas because (in Althouse’s words) “they are justices committed to a particular constitutional theory.” Says Hugh,
When Bush said “like Scalia or Thomas” many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear “justices committed to a particular theory…of textualism or originalism.” I think they heard “justices who aren’t making stuff up,” or “justices who aren’t full of themselves,” or “justices who will not impose same sex marriage or overturn every juvenile death penalty in the land or import EEC law on a whim.”
It’s possible, of course, that a Justice Miers might make stuff up, and might reach too many bad results. It’s also possible that Chief Justice Roberts, or any other nominee, might do so. I’d certainly be much happier if the president had nominated someone with a track record of not making stuff up and not reaching bad results, instead of someone with no track record in this regard. But his failure to do so isn’t the same thing as violating his promise to appoint Justices in the Scalia and Thomas mold (as he and most others understood that promise). And it is more plausible to trust Bush to be able to make judgments about whether his friend and colleague is “full of herself,” or prone to “make stuff up,” or likely to fall in love with foreign law, than it is to trust him to spot a true constitutional “originalist.”
JOHN adds: I agree. I haven’t spent enough time studying Constiutional theory to know whether I would be classified as an “originalist” or not, nor, frankly, have I lost any sleep over the question. If I were a judge, I would apply the Constitution and statutes to cases before me in the same way that I do now as a practitioner. I think it’s fine for a judge to be a member of a school of thought about the Constitution, but it’s hardly necessary. I’m not sure whether John Roberts is considered an originalist, either, but I liked his answer to a question on that subject during his confirmation hearing:
GRASSLEY: In your confirmation for the D.C. Circuit, you answered a question asking whether — by another member — whether you supported the originalist approach to constitutional interpretation by saying this, so I hope I’m quoting you accurately:
I do not have an all-encompassing approach to constitutional interpretation. The appropriate approach depends, to some degree, on the specific provisions at issue. Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.
I would not hew to a particular school of interpretation, but would follow the approach or approaches that seem most suited in the particular case to correctly discerning the meaning of the provision at issue, end of quote.
Could you explain what approaches you’re talking about? I’m not sure, in your quote, what you’re getting at. Secondly, can you give some examples? And three, I would like to know when you don’t believe that the originalist approach is the right approach.
ROBERTS: Well, I think it’s very important to define these terms. Let’s take the originalist approach. I do think that the framers’ intent is the guiding principle that should apply.
However, you do need to be very careful and make sure that you’re giving appropriate weight to the words that the framers used to embody their intent.
I think of, in particular, the Fourth Amendment and the equal protection clause. There are some who may think they’re being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that’s all that the equal protection clause applies to.
But, in fact, they didn’t write the equal protection clause in such narrow terms. They wrote more generally.
That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it. That is an originalist view because you’re looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.
There are some areas where a very strict texturalist approach makes the most sense. Obviously — the example I gave earlier — two- thirds means two-thirds. You don’t say, Well, their purpose was to apply some super-majority requirement and now that we have more senators, three-fifths will give effect to that intent. Nobody would apply that approach. You stick to the language.
In other areas, the court’s precedents dictate the approach. This is not something that is purely a matter of academic exercise. For example, on the Seventh Amendment, the right to a jury trial, the court has been very specific. We have a historical approach there. The job of a judge is to look at whatever action is and try to analogize it: What would that most be like in 1787? And if you got a jury trial for that, you get one today. And if you didn’t, you don’t. It’s a purely historical approach.
So the approaches do vary. And I don’t have an overarching view.
As a matter of fact, I don’t think very many judges do. I think a lot of academics do. But the demands of deciding cases and the demands of deciding cases by committee — either a group of three or a group of nine — I find with those demands the nuances of academic theory are dispensed with fairly quickly and judges take a more practical and pragmatic approach to trying to reach the best decision consistent with the rule of law.