From several legal experts, and Senator Cornyn.

[Update early afternoon]

The Seinfeld hearings:

Today we live in a legal world in which many progressives and conservatives share the legal realists’ preoccupation with results. So justices must be chosen who will reach the politically correct results or opposed because they will reach the wrong results. Judicial confirmation hearings are thereby turned into a game of gotcha, with questioners trying to trip up the other side’s nominees, and nominees quite properly refusing to reveal the only thing their inquisitors truly care about: how they would rule in particular cases that are likely to come before the Court.

But postures must be assumed and questions must be asked. So senators and nominees opine about two empty concepts. The first is “stare decisis” or precedent: Will the nominee follow the hallowed case of U.S. v. Whatchamacallit or not?

Of course, the legal realists detested precedent, which in their time stood in the way of their progressive agenda. Nothing has really changed. Both sides only want to respect the precedents that lead to the results they like. No one thinks justices should follow every precedent, so the crucial issue is picking and choosing which to follow and which to ignore. But how? Well, by the results, of course.

I’ve posted on this often in the past. One of the hardest concepts for many people to understand is that the Constitution is not designed to suit their preferences, and it is not the job of a judge to construe or misconstrue it to the preferences of themselves or others. Roe was a judicial atrocity not because it legalized abortion, per se, but because it found a non-existent right in the Constitution, and extended it to all fifty states, part of the obliteration of federalism that occurred in the twentieth century. One can think that abortion should be legal and still think Roe deeply flawed (the position of Judge Ginsburg, if I am not mistaken).

Accordingly, one shouldn’t choose a judge because one thinks that they will agree on the desired outcome, but for their willingness to follow the law (including the fundamental law expressed in the Constitution). This should be an argument not about results, but about process. But it never is.

He has a recommendation as to how to do it right, which, unfortunately, most Senators would be incapable of doing, even if they wanted to:Don’t ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a “factor” or starting point. If so, what other factors do they think a justice should rely on to “interpret” the meaning of the text? Even asking whether “We the People” in the U.S. Constitution originally included blacks and slaves — as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford — will tell us much about a nominee’s approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something.

Couldn’t have that.

[Bumped]