Originalism Can Help Solve This Problem

John Lott has performed a signal service in showing that fine credentials and career distinction, far from being assets in the confirmation process, actually retard the progress of well-qualified nominees. He does so with empirical analysis, showing how data, rather than anecdotes, can powerfully illuminate our social problems.   In this response, I want to emphasize the substantial costs to justice of the phenomenon he describes and offer some additional proposals for reform.

The real problem is in the lower courts, not the Supreme Court. The Supreme Court may well be better educated and better credentialed than at any time in history.  All justices went to one of two top law schools, Harvard or Yale. Indeed, the real danger to justice under law at the high court surely stems not from lack of intelligence or education, but the potential insularity and arrogance bred in the Ivy League, compounded by our celebrity culture that may capture some Justices and distort their decisionmaking.

The Supreme Court is likely to continue to get high-quality nominees, at least as measured by the indicia that Lott uses. The story of the Harriet Miers, George W. Bush’s failed nominee to the Court, actually confirms this point.  To be sure, Democrats welcomed the lack of intellectual ballast that might leave her adrift to bob up and down in the currents of our largely left-liberal legal culture.  But conservatives were appalled. They forced George Bush to withdraw the nomination, while the White House employed the fig leaf that her confirmation would require the disclosure of too many sensitive documents.

But the lower courts are a different story.  Here public inattention makes excellence at best irrelevant and allows both Republicans and Democrats to delay and even stop the most able nominees.  One additional motivation for roughing up the best nominees is that once they are confirmed to a lower federal court, they may be difficult to stop at the Supreme Court level when the opposition maneuvers will be circumscribed by the public’s greater attention.

Blocking the most talented nominees of each party has costs for the development of the law. The law is spun pure through the sifting of arguments, and a bench composed the best nominees of each party rather more mediocre ones will collectively do the best sifting.   Moreover, most federal cases do not present issues that concern the Constitution or are political or ideological in any strong sense of those terms.  But brighter nominees will likely make for more coherent resolutions of such disputes and save on long run litigation costs as they come up with more efficient answers sooner, at least when such solutions are permitted by law.    

An article a few years ago rated the strongest judges by a composite measure that included such factors as citations by other judges and partisan independence.[1]  The top three judges were Richard Posner, Frank Easterbrook, and Jay Harvey Wilkinson III.   All were extremely well credentialed nominees. In fact, all had been law professors at top law schools.  Yet is it hard to imagine that similar candidates could be regularly nominated, much less confirmed today.  Even then Wilkinson was confirmed by only a narrow margin. And Richard Posner would surely be tripped up by the many controversial, even if cogently argued, articles he had already written at the time of his nomination. And even before the confirmation process begins, the prospect of messy fights and delays no doubt deters some fine potential candidates from answering their nation’s call.

What are the solutions?   Happily, the Senate adopted one just last month through the elimination of the filibuster for lower court nominees.  Majority rule for judicial confirmations will make it harder to stop nominees once they get to the floor, assuming the President’s party is in the majority. But there are other procedural devices available to the minority and of course the majority party can still delay and block even the most qualified nominees to lower courts of an opposing party’s President. Moreover, special interest groups, like NARAL on the left and the NRA on the right, also have incentives to block talented nominees perceived likely to rule against their interests.  

 The most effective way to stop excellent nominees is simply to refuse to give them a hearing, because they will then be less able to garner editorial and public support.  That tactic is consistent with a basic interest group strategy: raise the information costs of opponents.  For instance, the Democrats and Republicans refused to hold hearings for John Roberts and Elena Kagan respectively when they were first nominated for the District of Columbia Circuit.

One possible response would be to change the committee rules, as Michael Rappaport and I have suggested.[2]   The Judiciary Committee could pass a rule requiring it to hold a hearing within six months of a nomination and to hold a Committee vote within one month of the hearing, unless at least two-thirds of the Committee agrees to postpone it. The nominee would then be assured of a hearing unless several members of the minority party agreed to delay. While the public would gain the benefit of more deliberative democracy, the rule would maintain the Committee’s autonomy and avoid hearings on extraordinarily weak candidates that would merely waste time. 

Even if the committee passed such a rule, one might wonder why it would not be abrogated whenever a majority of the committee chose to do so.   A plausible reason is that personal relations on a Senate committee are stronger than in the Senate as a whole and thus a committee rule of this kind will be more stable than a rule of the full Senate, like the filibuster.

Beyond changes in the institutional rules of the Senate, larger changes in social norms may make it more likely that the most talented nominees will be confirmed.  John Lott argues that constraining the role of the federal government may improve the confirmation process because less will be at stake.  I entirely agree with that suggestion, although I would emphasize federal discretionary power, as opposed simply to the size of government. Federal discretionary power includes that of the federal judiciary, as when it invalidates state law on the basis of doctrines like substantive due process.

But another possible social solution is the revival of originalism in constitutional interpretation. That revival would also lower the stakes because judges would be adjudicating the most important legal questions not on the basis of their personal preferences but on the basis of the historical fixed meaning of constitutional provisions. They would look not inward to their own values but outwards to empirical facts of the world that judges have in common.

We may be witnessing the beginning of a revival of originalism on both the Supreme Court and the legal academy.  District of Columbia v. Heller,[3] which upheld an individual’s right to bear arms, is one prominent example but far from the only one. And by no means are all of these decisions politically conservative. For instance, in a series of decisions the Court, led by Antonin Scalia, has enforced the Confrontation Clause of the Constitution to give criminal defendants broad rights to cross examine witnesses. 

In the academy, originalism is also undergoing a revival. Serious new ideas supporting originalism are the most vibrant area of constitutional theory. Many leading law reviews publish thoroughly researched historical analyses of specific provisions of the Constitution. And even technology may provide some assistance here. Big data allows us to explore the evidence of the past more comprehensively and systematically than ever before. 

No one should be so naïve to think that originalism will lead to universal consensus on legal questions.  Judges will generally have biases and look at even historical evidence from a parochial perspective. But the method offers some substantial constraint, particularly if the political and academic cultures take originalism seriously—as they once did but have failed to do for decades.[4]  After all, the Marshall Court of the early republic, despite being composed of many justices appointed by Democratic-Republican as well as Federalist presidents, reached unanimous or close to unanimous decisions on the most controversial issues of the day, including the constitutionality of the Bank of the United States. And given that originalism in my view leads to some greater limits on the federal government’s power than exist today, its revival would create a virtuous circle with John Lott’s own principal suggestion for reform.



[1] Stephen Choi & Mitu Gulati, Choosing The Next Supreme Court Justice: An Empirical Ranking Of Judge Performance, 78 S. Cal. L. Rev. 23 (2004).

[2] See John O. McGinnis & Michael B. Rappaport, Supermajority Rules and the Judicial Confirmation Process26 Cardozo L. Rev. 543, 571 (2005).

[3] 554 U.S. 570 (2008)

[4] On the importance of reviving a culture of originalism, see John O. McGinnis & Michael B. Rappaport, Originalism the Good Constitution 197-207 (2013).

Also from this issue

Lead Essay

  • John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Michael Teter agrees that the judicial confirmations process is broken, along with much else about the legislative process. The whole thing, he argues, is a problem. But to him, the root of the problem isn’t big government: Teter argues that the rules and norms of the Senate delay action in a wide variety of areas, and not the growth of government. He describes the recent end of nomination filibusters as a good step toward fixing the problem, and he recommends further changes that will speed up the appointment of judges.

  • Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.