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Randy Barnett and I have a new piece in National Affairs, based on our contribution to the Chicago Law Review Online, titled Restoring the Lost Confirmation. We discuss how originalism can salvage the currently-meaningless confirmation hearing.  Here is the introduction:

There is a silver lining to the storm clouds brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech nominating Chief Judge Merrick Garland to the Supreme Court this spring, President Obama faulted Democrats and Republicans alike for their prior positions on judges. “There’s been politics involved in nominations in the past” on both sides, Obama observed. He’s right. Over the past three decades, presidents and senators from both parties have ratcheted up the tension over Supreme Court nominees. And the lynchpin 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 maintains that, in their current 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 equivocates and obfuscates. Prospective judges nominated by presidents 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 will behave if confirmed.

The end result was accurately described by one legal scholar two decades ago: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” That scholar was Elena Kagan. Perhaps because of her astute awareness of this phenomenon, and to ensure her own confirmation, the former Harvard Law School dean and solicitor general did what all nominees do: deftly navigated between the straits of Scylla’s vacuity and Charybdis’s farce.

…

Before we proceed further, we should disclose that we are originalists, and we would like to see more originalist justices on the Court. We believe that the current vacuity of the confirmation process enables “living constitutionalists” to slip through the net and make it to the Court unscathed. Our objective is, therefore, not neutral between constitutional approaches. But we also believe that a focus on clauses rather than cases during confirmation hearings would improve the quality and character of hearings for everyone by moving away from vapid questions and farcical answers. Living constitutionalists would be perfectly free to explain and defend their approach to the senators.

Critically, through this refined focus, the senators — and ultimately the people as sovereigns — can engage in a public dialectic with the nominees to probe their deepest knowledge of the portions of the Constitution that do not change with time. 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 — are paramount and timeless. And if we are right that the original meaning of the Constitution does produce determinate answers to constitutional controversies, then our approach will offer useful insights into how a nominee will vote once no longer constrained by precedents.

Our approach may be easier than it seems, because only 1 or 2 Senators–perhaps those who are former SCOTUS clerks–would have to pose the sorts of originalist inquiries need to change the tone of the proceedings.

But we don’t need a cadre of originalist senators. The beauty of this approach is that no rules need be changed; no bipartisan agreement need be reached; and the Republicans on the Senate Judiciary Committee need not even 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. And we have full confidence that the Judiciary Committee counsels on both sides are quite capable of generating useful questions for the nominees.

Imagine if a handful of senators — perhaps Ted Cruz of Texas or Mike Lee of Utah, both former Supreme Court clerks — grilled Chief Judge Garland on the questions we asked above. Garland — whose two-decade record on the bench shows absolutely no affinity for originalism — may prove utterly incapable of answering their questions, beyond perfunctory platitudes. Whenever Garland reverts to discussing case law, the senator might interrupt and say, “I am not interested in precedents. Once confirmed you can change all that. I want you to discuss matters you cannot change, like the Federalist and Anti-Federalist Papers, Blackstone’s Commentaries, the records of the Constitutional Convention, records of the ratification of the 14th Amendment, and other contemporaneous sources.” Any effort to shift back to citing cases should be swiftly halted. With such a rough going, the tenor of the debate would immediately change. These questions are especially critical given that the next nominee will fill the seat of Antonin Scalia, who ought to be canonized as the patron saint of originalism.

Unlike the “gotcha” questions that have marked recent hearings, these originalist questions are entirely fair game. Even the most qualified candidate could be embarrassed. His lack of preparation might reveal to the American people something meaningful about how he would go about making decisions once no longer controlled by stare decisis. The inquiring senators would make the seminal point that the Constitution is not just what five justices say it is — the Supreme Court does not have a monopoly on interpreting the document. If a nominee replies that these historical sources are not relevant, or not worthy of study (as federal court of appeals Judge Richard Posner recently asserted), then that is an entirely justifiable ground for voting against his confirmation.

I was honored to speak at Cato Constitution Day–the greatest holiday of the year (even if it is unconstitutional)–about U.S. v. Texas. On a personal note, it was a particular honor because my first time at the Cato Institute was for Constitution Day 2007. I was a 2L at GMU, and had absolutely no idea what I was doing. I still find it remarkable that less than a decade later, I was up on the stage speaking about a case none of us could have fathomed way back when. That was also Ilya Shapiro’s first Constitution Day at Cato, so we share that first.

My remarks are based on the imagined concurring opinion from Justice Scalia in U.S. v. Texas. (I appreciate the various suggests and comments I’ve received about the piece, but as with any judicial opinion, I will let it speak for itself).

I often dream about the Supreme Court. Don’t try to psychoanalyze me–just go with it. Last night I dreamt that I was sitting next to Justice Breyer, and showing him the galleys for Unraveled. The first thing he did was the “Washington read.” He quickly flipped to the index to see how many times his name was mentioned. I can’t tell you how many people did this for Unprecedented, and told me–complained, really–that their names weren’t listed enough. I expect similar complaints this go-around, because Cambridge does not index the names of authors in the footnotes.

In any event, after checking out his own name, Breyer flipped to the other justices to see how many times they were listed in the index. I remember telling him that because Justice Thomas doesn’t ask any questions, he’s not in the book very often. I also remember seeing a typo in the manuscript–which I am positive is actually there–but I have no recollection of what it was. I’ll see it once the book is published.

Well Justice Breyer, in case you were trying to contact my subconscious, here are your entires in the index of Unraveled.

Breyer, Stephen G. (Justice), 6, 294

King v. Burwell and, 479
on Medicaid expansion, 546
NFIB v. Sebelius and, 122–123
nomination of, 487–488
religious freedom rulings and, 254, 306, 308
Supreme Court budget hearings and, 418
on Supreme Court building, 515
Wheaton College ruling and, 310
Zubik v. Burwell and, 505–508, 516–517, 521, 523, 534

And here is Justice Thomas’s far-more paltry index listings:

Thomas, Clarence (Justice), 78, 123, 229, 250, 343, 442, 479, 481

on Medicaid expansion, 546
nomination of, 486–487
Zubik v. Burwell and, 521

By far, the Justice with the most mentions in this Obamacare book is (shocker) the Chief:

Roberts, John (Chief Justice), xxiii

Cruz and, 465–467
defunding proposals for ACA and, 25
on former chief justices, 432–433
on Garland nomination, 492
individual mandate in ACA and, 91, 116–117, 190, 344, 346
on judicial nominations, 230–231
King v. Burwell and, 387–388, 399–402, 433–435, 437–444, 465–467
on Medicaid expansion, 546
nomination of, 465–467, 487–488
religious freedom rulings and, 255–257, 261, 264, 293–294, 303
Scalia’s death and, 479–482, 520
Supreme Court rulings on ACA and, 59–60, 75, 77–78, 130, 251, 270, 291–292, 560
tax credits in ACA and, 122–123
Verrilli on, 518
Zubik v. Burwell and, 503, 508, 510, 512–514, 521, 524–527

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.

Joyce Wadler, a humorist for the New York Times, wrote a satirical column about not being able to unlock her iPhone quickly enough to take a picture of teenagers who assaulted her.

Then I remember what the modern victim is supposed to do: Get a photo. I open the flap of my cross-body bag; unzip the phone pouch; try to unlock my phone with a sweaty fingerprint — and fail, because wet hands mess up the ID; punch in my security code; swipe through the icons for the camera; find it; and aim. By which time the kids have, of course, disappeared.

You know those assault horror stories that have exploded this summer? Women groped on subways; perverts exposing themselves; black drivers pulled over and terrorized by the police; officers murdered by snipers.

What has amazed me about these crimes is the ability of many victims or passers-by to quickly grab their phones and get a photo. Or live-stream the attackers on Facebook. America is a country of quick-draw artists, with apps instead of guns.

But not me. I am, I realize, one of those helpless townspeople who after years of being terrorized by a gang of sneering bandits, would have to hire a gunman. Clint Eastwood, say, in a remake of “High Plains Drifter” — call it “High Line Drifter.”

This is precisely why smart guns are impractical. The decision to use a gun must be made in a split-second. (If you don’t think anyone can ever use a gun in self-defense, no need to read the rest of the post–your position is to ban guns altogether). Having to deal with a finger-print reader, or wearing a special bracelet to activate the gun, adds unnecessary time before it can be used. And that’s assuming these electronic devices work. If the battery dies, or your finger print is sweaty, or the software crashes, it is too late.

In January, President Obama asked “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?” Ms. Wadler illustrated the point clearly.

In any event, Apple recognized that when it comes to snapping the perfect selfie, every second counts. On the iPhone, there is a feature that allows you to take a picture without having to use a fingerprint, or code to unlock the phone.All you have to do is swipe up with the camera icon, and it goes straight to the camera app. Why do you think Steve Jobs and company inserted that feature? Because if you enter the wrong code, or if your finger is sweaty, the phone doesn’t unlock right away. When you have to take a selfie at *just* the right moment, and seconds count, requiring the user to unlock the phone takes too much time.

If time is of the essence to take a selfie, then time is really of the essence when using a firearm for self-defense. Even if a smart gun is able to discern the owner’s fingerprints, or the owner’s grip, it still introduces a potential for error. With self-defense, every millisecond counts.

I’m reminded of this exchange during D.C. v. Heller between Walter Dellinger and the Chief and Scalia about how long it takes to remove a trigger lock.

John G. Roberts, Jr. So how long does it take? If your interpretation is correct, how long does it take to remove the trigger lock and make the gun operable.

Walter E. Dellinger, III –You… you place a trigger lock on and it has… the version I have, a few… you can buy them at 17th Street Hardware… has a code, like a three-digit code. You turn to the code and you pull it apart. That’s all it takes. Even… it took me 3 seconds.

Antonin Scalia You turn on, you turn on the lamp next to your bed so you can… you can turn the knob at 3-22-95, and so somebody–

Walter E. Dellinger, III Well–

John G. Roberts, Jr. Is it like that? Is it a numerical code?

Walter E. Dellinger, III –Yes, you can have one with a numerical code.

John G. Roberts, Jr. So then you turn on the lamp, you pick up your reading glasses…–

[Laughter]

Walter E. Dellinger, III Let me tell you. That’s right. Let me tell you why at the end of the day this doesn’t… this doesn’t matter, for two reasons. The lesson–

John G. Roberts, Jr. It may not matter, but I’d like some idea about how long it takes.

Walter E. Dellinger, III –It took me 3 seconds. I’m not kidding.