WSJ.com - Opinion: The Seinfeld Hearings
In the 1930s, academics developed a philosophy they called "legal realism" to undercut judicial resistance to "progressive" statutes such as laws restricting the hours a baker or a woman could work. Legal realism elevated just results over the rule of law. It saw analysis of "the law" as an after-the-fact rationalization that allowed reactionary judges to conceal their empathy for the oppressed. Because legal realists believed judges inevitably made law when they ruled, they thought judges should decide cases with progressive ends in mind.
At the same time, and somewhat inconsistently, realist progressives also condemned judges who declared progressive federal and state laws to be unconstitutional as judicial activists who were thwarting the will of the people. Never mind that the Supreme Court was only tepidly enforcing the original meaning of the Constitution and was upholding the vast majority of enlightened regulations. Any interference of the will of the people was deemed to be undemocratic.
Today we live in a legal world in which many progressives and conservatives share the legal realists' preoccupation with results. So justices must be chosen who will reach the politically correct results or opposed because they will reach the wrong results. Judicial confirmation hearings are thereby turned into a game of gotcha…
Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean…. Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained.
Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something.
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