The death of Justice Ruth Bader Ginsberg and the rapid nomination of a replacement with a different judicial philosophy should remind both those who voted in the last presidential election and more pointedly those who didn’t that elections have consequences — and this is one of them. The visible hypocrisy that has provided the context for the contrast between the timing of this nomination of Judge Amy Coney Barrett and that of Judge Merrick Garland in 2016 should unfortunately not have been unexpected, although, the historical footnotes that have been verbalized to justify it are both illogical and ineffectual.
The political reality which illustrates that point was best summarized up by Louisiana Sen. John Neely Kennedy (R), when he explained what was going on and being said about it by acknowledging that constitutionally, this nomination is permissible, and as a practical matter at least for the last 40 years either political party when it has had the power to do what they think is “right” has done it, and when it has not had that power, didn’t because it couldn’t. That’s because each political party’s very different concept of what’s “right” is repeatedly reinforced by social media, and the party base’s favorite cable news shows which echo themes that their viewers’ political beliefs are “good” and the other party’s ideas are “evil.”
For that unfortunately currently immutable reason, despite all the handwringing by Democrats, this writer has very little doubt that in similar circumstances, if there was an incumbent president who was a Democrat and a U.S. Senate whose majority was of the same party, that there would be a nomination particularly if the Democratic Party’s president sensed that he or she might lose the next election, a possibility about which the current Republican president and U.S. Senate leadership must be apprehensive.
That does not, however, excuse the sad, indeed pathetic state of our politics when U.S. senators apparently no longer believe that it is important that they be able to believe each other when they say something. Or that somehow they can escape responsibility for completely abandoning their previous stated positions and the accompanying loss of their integrity, by inventing a pretext that because they were offended by the behavior of one or more colleagues of the other party, that their word should no longer matter. Where are the institutionalists? Where are the modern-day Robert Byrds and Howard Bakers when we need them?
That all said, President Trump has nominated Judge Amy Coney Barrett of Indiana to be the next U.S. Supreme Court justice. In making this nomination, the president has once again focused on the doctrine which “conservatives” have historically preached from whatever hilltop perch they could find — which former D.C. Court of Appeals, and acting U.S. attorney general, Judge Robert Bork, articulated in his book, “The Tempting of America.”
Those words prescribed that what a judge should do when interpreting the Constitution is to determine how the words used in the Constitution would have been understood at the time of enactment. This is the “Doctrine of Original Intent” or as it is known “Originalism.” It is sometimes confused, ironically, by conservatives with “The Legal Process School” of jurisprudence which emphasizes that the law should be interpreted in accordance with “neutral principles” derived from the text of the Constitution, statutes, and appellate court opinions with precedential value. They are not the same.
In fact, Originalism makes such a cause out of the intent of the framers that Bork, in his book, stated unequivocally that “no person should be nominated or confirmed for the Supreme Court who does not display both a grasp of, and devotion to, philosophy of original understanding.” Let us hope for Judge Barrett’s sake that a majority of U.S. senators who must vote to confirm her to replace Justice Ginsberg didn’t read Judge Bork’s book, or forgot about it if they did. That is because there is no evidence that any court in this country, including the Supreme Court, or even any individual Supreme Court justice, including Justice Scalia, has ever consistently been originalist in his or her thinking and decisions.
No, the record of Judge Barrett to the extent that I can discern it, is that her instinct is to follow the principles of the “Legal Process School” or “Textualism” which as I have said, is different from “Originalism.”
Both of these judicial philosophies do, however, subscribe in different ways to the belief that process is more important than results in interpreting the law. The “Legal Process School,” Textualism or Formalism, presupposes that “neutral principles” can always be discerned and then applied to new circumstances correctly and consistently to guarantee fairness and stability. The “Doctrine of Original Intent,” Originalism, on the other hand, requires that the law be interpreted in accordance with the intent of the founders. It is premised on the slightly different proposition that “original intent” can always be divined by “wise judges” who can then apply it to new circumstances. This process will, in turn, it is believed, by “Originalists,” produce a result in every case consistent with what the founders would have wanted to happen in that circumstance or case.
This writer, based on his experience on three different trial courts over a period of 35 years, and a limited number of special assignments on Maryland’s intermediated appellate court, does not share the confidence of the academicians, legal writers, and limited number of judges who repose almost unlimited faith in the ability of “wise judges” to discern what the intent of the founders would have been in new circumstances unheard of, indeed unimaginable in their day. Nor do I attribute infallible logic and interpretive skills to those same “wise judges” on both our trial and appellate courts to divine “sacred neutral principles” from the texts of statutes written not by legal scholars, but rather by popularly elected legislators, governors, presidents and their staffs, as well as opinions written by their predecessor, “wise judges” on our federal and state appellate courts.
That said, I do recognize that the justification, indeed the almost religious fervor with which those academicians and legal writers, as well as the politicians who latch on to their adherence to these two judicial philosophies, feel that it is necessary to curb judicial discretion in order to keep unelected judges from seizing power from the people’s elected representatives. This is what you constantly hear on the campaign trail in both state and federal elections. Naturally, it was echoed once again at the staging of Judge Barrett’s nomination.
As Judge Richard Posner, now retired from Judge Barrett’s 7th Federal Circuit Court himself, a distinguished prolific and recognized conservative appellate jurist, and other legal writers pointed out, there is no legal experience or evidence to support the proposition that this is the choice. In fact, as Posner illustrates and legal writer Ronald Dworkin says, “The question posed by an originalist versus an activist or pragmatic judiciary is not one of democracy or no democracy, but of the kind of democracy we want.”
The kind of democracy we will have will result from whether we choose originalist and/or textualist judges or alternatively pragmatist judges, such as the originator of the judicial philosophy of “Legal Pragmatism,” Supreme Court Justice Benjamin Cardozo and its most illustrious modern day practitioner, Judge Posner.
Pragmatists believe that legal rules should be viewed as instruments of justice. As Cardozo said, and Posner emphasized in his writing, “Few rules in our time are so well established that they may not be called upon any day to justify their existence as a means adopted to an end.
The Pragmatist Judge is interested in “the facts of the case” and in what works and what is useful. Therefore, he or she wants to be informed as much as possible about the operation and probable effects of alternative judicial courses of action. Judicial pragmatism in the antithesis of legal certainty. The Pragmatist Judge recognizes as Posner points out that “Society’s most tenaciously held truths are not those that can be proved, probed, discussed or investigated.” These beliefs are what lay people call “common sense” and what lawyers, judges, and social scientists refer to as “frame of reference.” Supporting a nominee for Supreme Court justice on the basis that she should not want to consider the effect of her decisions on the people who will be impacted by them, and should not let the facts of the case, i.e., common sense, influence her because the facts might cloud her path to the certain truth, which only she can know by the virtue of the robe she wears and the text she reads, it seems to me in the long run is neither an effective political message nor a viable long-term judicial philosophy. Full disclosure: This Pragmatist Judge hopes to observe how this philosophy works this time and in the not too distant future.
Bottom line – the function of law is to ensure justice and equilibrium. The origin of the law is not the main thing – the goal is. There can be no wisdom in the choice of legal path unless we know where it will lead. Where are you going – what kind of democracy do you want, Judge Barrett?
— STEVEN I. PLATT
The writer is a Senior Circuit Court Judge.