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The Chicago Law Review is hosting an online symposium about “Presidential Politics and the 113th Justice.” Randy Barnett and I submitted a piece titled “Restoring the Lost Confirmation.” As you may guess, we discus on how a renewed focus on originalism could improve the confirmation hearing process. Also check out the submissions from Amy Howe, Lisa McElroy, Michael Stokes Paulsen, Kermit Roosevelt, Erwin Chemerinsky, Marci Hamilton, and Michael Dorf.

Here is the abstract of our piece:

There is a silver lining to the stormy cloud brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech nominating Judge Merrick Garland to the Supreme Court, President Barack Obama faulted Democrats and Republicans for their prior positions on judges. “[T]here’s been politics involved in nominations in the past” on both sides, Obama observed. He is right. Over the past three decades, presidents and senators from either side of the aisle have ratcheted up the tension over Supreme Court nominees. And the linchpin of that conflict is what has become an utterly meaningless ritual: the confirmation hearing. But not for the reasons you may think.

The conventional wisdom is that, in their present form, judicial confirmation hearings serve no meaningful purpose. This is because nominees, who are rationally self-interested in being confirmed, refuse to answer any questions that could jeopardize their prospects. Instead—the theory goes—when asked a controversial question, the nominee filibusters and obfuscates. Candidates of both parties are trained through rigorous “murder boards” to provide answers that are designed to shed as little light as possible on how they would behave as judges.

However, the conventional wisdom is based upon an incomplete account of how the hearings have devolved. While we agree that the current dysfunctional state of the confirmation process stems from the failed appointment of Judge Robert Bork to the Supreme Court, there is a widespread misunderstanding of what exactly went wrong at the Bork hearing. We contend the types of questions asked by both Democratic and Republican senators—at that hearing and since—assume a “legal realist” emphasis on results rather than on legal reasoning. The focus has been on cases of the Court rather than on clauses of the Constitution. Each side is trying to get nominees to tip their hand on how they will decide cases that each side cares about. But there is a better way.

This Essay proceeds in three parts. First, we identify three distinct “moves” that allow nominees to skate away from questions that might reveal that they would reach the “wrong” results in future cases. Second, we demonstrate how a focus on the meaning of clauses of the Constitution, rather than the cases before the Supreme Court, can fundamentally transform how hearings are conducted. We harbor no illusions that members of the Senate Judiciary Committee all possess the sufficient knowledge to meaningfully engage in this line of questioning, beyond reading prepared questions from staffers. But we do not need a cadre of originalist senators. The beauty of our reform is that no rules need be changed; no bipartisan agreement need be reached; and even the Republicans on the Senate Judiciary Committee need not all be of the same mind. For this approach to restore the lost confirmation hearing, we need only a senator or two to focus their limited time on originalism.

Finally, we explain how the gravitational pull of originalism can tug future justices, and ultimately the Supreme Court itself, closer to the original understanding of the Constitution. This new methodology would improve public confidence in the courts, and encourage presidents to be more mindful of the text of the Constitution, rather than outcomes, when selecting nominees. Our proposed approach seeks to restore the lost confirmation, where the focus on the text and history of our “republican” Constitution—the truly immutable characteristics of our fundamental law—is paramount and timeless.

Randy and I will have an expanded version of this article in the Fall issue of National Affairs–perhaps well-timed for whatever may happen with Justice Scalia’s seat in the next few months.

When Unprecedented was released, I had a feature on my blog which allowed readers to order an autographed copy at a slightly higher cost, to factor in my costs of shipping. This was not very effective, and fewer people than I had hoped tried it.

For Unraveled, I will make this much easier. If you pre-order a copy of the book, I will mail you a free personalized, autographed book plate. It will he an adhesive, which you can peel and place wherever you’d like. I won’t even charge for postage!

Once you’ve pre-ordered the book, please fill out this form, which asks for your contact information so I can mail the book plate.

Also–to give you a little inside-the business perspective–the more pre-orders there are, the more books that will be printed. This will help to increase the distribution of the book, merely by ordering it early. Amazon offers a pre-order guarantee. If the price drops before it is published (it will), you will only pay the lowest cost. So there is no downside.

I am thrilled to announce that Randy Barnett has invited me to join as a co-author on the third edition of his constitutional law textbook, Constitutional Law: Cases in Context. I was the Editor for the Supplement to the Second Edition, which should hit bookstores this fall. We included several of the big cases (Fisher and Whole Women’s Health), as well as several other significant cases that didn’t get much attention (Taylor v. United States, Caetano v. Massachusetts, and Voisine v. United States). I am really excited about this new project, which should keep me busy for the next few decades.

My second book, “Unraveled: Obamacare, Religious Liberty, and Executive Power,” is now available for pre-order from Amazon. Cambridge is scheduled to publish it on September 27, so please ignore the October 31 publication date. Also, Amazon has a pre-order price guarantee, so when the price drops below $29.99 prior to the release date (it will), you will only be billed the lowest amount.

I am happy to provide some of the early reviews of the book from George Will, Erwin Chemerinsky, Michael McConnell, Nick Bagley, and Ramesh Ponnuru:

“Obamacare has remarkably, if perversely, made American political discourse more interesting. It has stimulated braided debates about the proper scope and actual competence of government, about the role of the judiciary in supervising democratic processes, and about how religious liberty becomes a casualty of ‘comprehensive’ social legislation enlarging the entitlement state. Josh Blackman, who has been immersed in all this as a scholar and participant, gives readers an invaluable inside tour of an ongoing controversy.”
George F. Will, newspaper columnist and political commentator

“Josh Blackman has written a thorough and engaging account of the political and legal issues surrounding Obamacare. This book is a must-read for all who are interested in the history of the Obama presidency and especially of its most important legislative accomplishment. Blackman presents the conservative perspective but he is even-handed, and all, including those (like me) who disagree with him, will learn a great deal from reading this book.”
Erwin Chemerinsky, University of California, Irvine School of Law

“Health care involves some of the most personal and – to many people – sacred and spiritually significant issues of life and death. So it is no surprise that an attempt by government to standardize health care coverage for all Americans would raise a host of issues of conscience, choice, and conviction. Josh Blackman’s new book Unraveled chronicles the legal struggles over these issues in a fair, complete, and immensely readable narrative. Three things are certain: death, taxes, and that these conflicts are far from over. This book will help us all to understand the stakes and the arguments.”
Michael W. McConnell, Stanford Law School

“Even-keeled and exhaustive, Blackman’s Unraveled offers the consummate insider’s take on the titanic legal struggles at the Supreme Court over the future of health reform. It is an indispensable resource and a gripping read.”
Nicholas Bagley, University of Michigan Law School

“Josh Blackman continues to bring a gimlet eye to the legal controversies surrounding the Affordable Care Act. He combines a careful, even meticulous attention to detail with a grasp of the important issues at stake. Even people who paid close attention to the debate will find much to learn from Unraveled.”
Ramesh Ponnuru, National Review

I will write much more about Unraveled in the coming days.

After the outbreak of the Civil War, all federal judges in the South resigned, save one–West. H. Humphrey’s of the District of Tennessee. The Eastern District of Tennessee’s Historical Society had this account in its 2011 newsletter:

In his oral history, conducted by the Court Historical Society in As the country observes the 150th anniversary of the beginning of the Civil war this spring, it’s worth mentioning here the unusual circumstances involving the U.S. district judge who served the Tennessee District during those days–West H. Humphreys of Clarksville.

There were three district court jurisdictions in Tennessee at that with one judge presiding over all three–Judge Humphreys. When Tennessee seceded from the Union in June 1861, Judge Humphreys accepted an appointment as a Confederate district judge, but he did not resign from his federal judgeship like all federal judges of other seceded states did.

The U.S. Senate impeached Humphreys in 1862, barring him from holding future office in the United States government. Humphreys continued to sit on the Confederate bench in Knoxville until 1863, when the city was captured by federal forces. Humphreys fled to Alabama. Hew as captured there in December 1864 but was later exchanged as a prisoner of war.

In September 1865, he took an oath of allegiance to the United States and sought–and was granted–amnesty by President Johnson. [JB: A native of Tennessee]. Humphreys continued to practice law until his death in 1882.

The federal Judgeship that Humphreys held was filled by Knoxville lawyer Connally F. Trigg upon Humphrey’s impeachment. Trigg was appointed by President Abraham Lincoln and served until his death in 1880.

Richard Aynes wrote further on Humphreys’ impeachment.

H/T to longtime reader Stephen R.