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Tuesday, March 28, 2017

Naming in Judicial Nominations

I participated in a fantastic symposium in October at the University of Wisconsin Law School on “Modern Federal Judicial Selection.” A nearly final draft of my essay for the Wisconsin Law Review from that symposium is available here.  My essay addresses the tactical errors of the Obama Administration in acting largely cooperatively on judicial nominations during uncooperative political times.  I want to use some of the ideas I introduced there and apply them to the Gorsuch hearings.

One of the arguments that I make is that judicial nominations are a unique opportunity for “naming.”  By naming, I mean applying a label or frame to a particular jurisprudential perspective.  Because the stakes in judicial nominations are large, nominations can serve as a political coordination device allowing stakeholders to discuss and reach agreement on a name.  The attention generated by a nomination generates a political microphone allowing that nominee and the Administration that selected them to broadcast that frame more broadly. 

Think, therefore, how much of last Thursday’s Gorsuch hearings were dominated by the name originalism.  The debate among Trump Administration officials and supporters before last week week consolidated and communicated to one another their support for originalism.  Gorsuch talked about originalism during the week, and many expert witnesses testified about originalism on Thursday.  Senators expressed their support, apprehension and/or opposition to originalism. 

Contrast, that, for instance, with the nomination of Sonia Sotomayor in 2009.  While the Trump Administration named originalism and associated Gorsuch with it, the Obama Administration did something very different.  The process leading to her nomination did not feature the meetings and the discussions about what name would be featured in the nominee’s jurisprudence and by the nominee’s performance at confirmation hearings.  While President Barack Obama mentioned he wanted “empathy,” that name was quickly disavowed by President Obama’s supporters.  During the hearings, Sotomayor did not mention any name for what her jurisprudence represented, and the day of witnesses (like Thursday for Gorsuch) did not feature any consistent vision of the law.  An opportunity to consolidate a progressive jurisprudential vision and communicate that vision were lost.

Posted by David Fontana on March 28, 2017 at 03:03 PM | Permalink


"An opportunity to consolidate a progressive jurisprudential vision and communicate that vision were lost."

What "name" would have suggested she use?

Posted by: anon | Mar 28, 2017 4:04:02 PM

I think it is because the general population (that has not been educated in law school) has a strong intuition that judges should apply the law, and not make it. "Originalism" can be named because people think that it is right.
Most laypeople recoil at the thought that judges should rule based on what outcome they would promote progress. Or based on favoring the little guy or gal.

Posted by: biff | Mar 28, 2017 5:00:10 PM

Are we just going to ignore the fact that Gorsuch is not an originalist? (You know, like Congress did?) He has unabashedly advanced a natural law jurisprudence that allows for interests other than fidelity to original intent. Seemed like more Trumpist lying to me, not something I'd want progressives to emulate.

Posted by: Anonymists Anonymous | Mar 28, 2017 8:10:33 PM

Anon Anon: Do you have a cite for that?

Posted by: biff | Mar 28, 2017 8:36:51 PM

"should apply the law, and not make it"

Judge Sotomayor in a segment that can be found on Youtube noted, saying she knows it is something you don't really say aloud, that court of appeals judges in some fashion make policy. There is some simplistic intuition that judges shouldn't "make law" but in practice they do. At the very least, state judges are common law judges in various respects & federal judges too, at the very least in certain ways.

"Originalism" is put out as a sort of magic where this isn't done. I understand the charm of magic. But, we can be honest around here, right?

"promote progress"

I'm not a judge of "most laypeople," but seems to me that there is a general acceptance by many of them that promoting progress, while applying the law, is not a bad thing. Many, e.g., thought the same sex marriage rulings promoted progress, moving on from the mistaken view of the pass or that at least we moved past that & judges helped some.

"favoring the little guy or gal"

Same caveat. Again, all things being equal, many laypeople support the idea of a judge protecting their interests, yes, more than some rich millionaire. Part of this is probably a feeling that the "little" person is likely to be not in an equal position and needs more help. Footnote Four perhaps can be seen to reflect this.

"Empathy" was one thing said to be helpful along with everything else (it is as if ONLY empathy was supposed to be used from some accounts) to help judge. Empathy is a useful device here, since it helps the judge step in the shoes, relate to, the parties. In fact, it might help conservative litigants too, perhaps a liberal judge not otherwise likely to view things thru their eyes. When, e.g., weighing 1A claims, determining if religion is unduly favored or burdened.

As to natural law, natural law could be used in an "originalist" way, so it's a question of how he wants to use it. Anyway, the term is so broad and open-ended, I wouldn't try really to say just using that was not originalist.

Posted by: Joe | Mar 28, 2017 9:12:18 PM

"An opportunity to consolidate a progressive jurisprudential vision and communicate that vision were lost."

I do agree it would be useful for this to be advanced while Sotomayor had a more bland accounting that left (ha) something to be desired. I continue to find the book co-authored by Pamela Karlan and Goodwin Liu (and a third writer) a promising attempt to advance a "consolidated" vision of that sort. Others have done so as well. So, a judicial nominee or his/her supporters should be able to do so. Perhaps, some attempt was made.

Posted by: Joe | Mar 28, 2017 9:30:55 PM

I'm reminded a bit of a post I wrote 9 years ago back at Slate's short-lived "Convictions" blog:

Posted by: Orin Kerr | Mar 28, 2017 10:01:16 PM

I thought Gorsuch made it pretty clear (in his testimony and in his book) that he thinks about the relation between the nature law and the positive law as one for which legislators, not judges, are responsible. His view, in other words, is like the one expressed ably (IMHO) by Judge O'Scannlain, here: http://mirrorofjustice.blogs.com/mirrorofjustice/2011/03/oscannlain-on-the-natural-law-in-the-american-tradition.html

Posted by: Rick Garnett | Apr 1, 2017 12:09:14 PM

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