Balkinization  

Friday, December 02, 2011

Why can't Ed Whelan take "yes" for an answer?

Doug Kendall

For decades, conservatives like Ed Whelan, the President of the Ethics and Public Policy Center and a prolific blogger at National Review’s Bench Memos, have criticized progressive judicial nominees for not endorsing originalism or for espousing a “living Constitution.” So you would think that Whelan would be overjoyed that many of President Obama’s nominees, including D.C. Circuit nominee Caitlin Halligan – scheduled for a cloture vote next Tuesday -- have emphasized the priority they put on the Constitution’s text and history. Halligan, in particular, has asserted that “the best way in which we can interpret [the Constitution] is to look to the text and the original intent of the Framers.” But instead of embracing Halligan, Whelan argues that Halligan’s acceptance of core originalist principles is – wait for it – a reason for opposing her nomination!

Whelan’s argument is two-fold. First, he makes a “confirmation conversion” argument, stating that because Halligan had not previously expressed these views on how to interpret the Constitution, “Halligan's confirmation testimony is, in the core sense of the word, incredible -- not believable.” Claims of a confirmation conversion are a standard trope of judicial confirmation politics, but the argument seems particularly weak here as it is based not on prior inconsistent statements by Halligan, but rather on Halligan’s inability to come up with prior public statements along these lines. That seems unfair. Halligan is a practicing appellate lawyer at the top of her profession, not an academic or a pundit. It is totally believable that she would not have had a prior opportunity to carefully consider and articulate her views on the role of a judge before her Senate confirmation process. Whelan’s second point comes in response to a Media Matters post rebutting Whelan’s assertion that Halligan’s testimony is not believable. Here’s the thrust of Whelan’s response to Media Matters:
How does Media Matters contrive to rehabilitate Halligan? First, carefully avoiding the phrase "original intent," it points out that "there are progressives who strongly believe that the text and history of the Constitution should form the basis of constitutional interpretation." Indeed, there are. But there is nothing -- zilch, nada -- in Halligan's record to suggest that she is one of them. Also, "progressive" advocates of some form of originalism routinely (uniformly, I suspect) condemn the "original intent" species of originalism. For a progressive to talk favorably of "original intent" is rather like a supposed aficionado of baseball to talk of how many "points" a team has scored -- in other words, a basic marker of fakery.

Whelan’s right that my organization – Constitutional Accountability Center -- and other progressives who support a form of originalism (what we call “New Textualism”), as well as, for that matter, most conservative originalists these days -- including Justice Antonin Scalia -- reject what Attorney General Edwin Meese once called “a jurisprudence of original intentions.” The reason is simple: Meese’s method would let the intentions of the Framers trump the text that they wrote, a cardinal sin if there ever were one. If that is what Halligan were advocating it would indeed be incredible and, frankly, disturbing. But that is not what she said. What Halligan said is that judges must rely on “the text and the original intent.” There appears to be very little separating that and CAC’s call for a greater emphasis on “text and history,” particularly when one considers that CAC has always recognized that the original intent of the Framers, revealed through documents such as the Federalist Papers, is an important part of the history that can be used by judges to clarify ambiguous text. As Halligan’s formulation recognizes, the text is what binds judges and original intent may not be used to contradict the meaning of the text the American people approved. So while CAC might phrase things slightly differently, this difference appears to be entirely a matter of semantics.

As CAC lays out most fully in this report by University of Virginia Law Professor Jim Ryan entitled Laying Claim to the Constitution: The Promise of New Textualism, there has been an important, if underreported, convergence of the views of liberals and conservatives about constitutional interpretation (with conservatives moving away from “original intent” originalism as practiced by Edwin Meese and Robert Bork and liberals moving toward a greater consideration of text and history). This convergence has been reflected in the Senate testimony of high profile Obama judicial nominees, including Elena Kagan, Goodwin Liu, and Caitlin Halligan.

Conservatives such as Ed Whelan should welcome this convergence of jurisprudential views – particularly when the nominee is a lawyer’s lawyer, as is Halligan. It’s time for Whelan to start taking yes for an answer.

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