Wampum

The Missing Qualification

While reading about the Senate debate on judicial nominees, I have hear a lot about qualifications. Apparently, in order to know if a nominee is qualified, one needs to know what one nominee’s father did for a living (sharecropper) and what one nominee does on Sunday morning (teaches Sunday school). I have not heard a bit about what some conservatives must consider a prime qualification for a position on the federal bench: skill as a historian.

President Bush has remarked that he wishes to pick judges in the mold of Justices Scalia and Thomas. One commonality of those two justices is that they profess to believe in original intent as the touchstone of constitutional analysis.

That is, they believe that the intent and understanding of the framers of any provision of the constitution controls the meaning of that provision. If the framers of the 14th Amendment intended to permit minority set asides in government contracts, then such are permitted. If not, then such set asides are not permitted.

President Bush's nominees should be people who have the skill set necessary to determine the original intent of the framers. It should be obvious that the needed skill set is that of a historian not a lawyer.

Jeff Cooper once wrote:

[W]hatever its merits might be, originalism is hard, much harder than its proponents generally acknowledge. I'm reminded of Judge Richard Arnold's panel decision for an Eighth Circuit panel in Anastasoff v. United States (a decision later vacated by the court en banc), in which he concluded that the circuit's practice of issuing nonprecedential unpublished opinions was unconstitutional because it contravened the original understanding of "the judicial power" in Article III. Judge Arnold's support for this conclusion consisted largely of brief passages in a couple of Federalists, as well as a smattering of references to Blackstone, Coke, and Hale. But, influential as those sources may have been, they do not fully capture the understandings of the legal and political communities of the time (as a number of scholars, myself included, have suggested, drawing on additional historical materials). Judge Arnold is a fine judge (and one to whom I owe a personal debt of gratitude, as he favorably reviewed some of my work--work that took issue with his own views--during my application for tenure), and he made a sincere effort to engage with historical materials. But his efforts at originalism in Anastasoff were deeply flawed.

That may be the result of structural constraints more than anything else. Appellate judges, with their heavy caseloads, are poorly positioned to perform serious historical work. Supreme Court justices, with their lighter workloads, may be better situated. But the vast majority of them will still lack any serious training in history as a discipline. It should therefore be no surprise when they produce lousy history.

That is exactly right. It should be added that lousy history, in the hands of an original intent judge, will make lousy law.

If conservatives are serious about using original intent, they will use “serious training in history as a discipline” as a criteria for selecting judges. So far, they have not done so. I conclude that they are not serious about original intent except in those cases in which it produces a result that they like.

Posted by Dwight Meredith at May 19, 2005 01:46 PM | TrackBack