One rising group of liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues strengthened rules against racial animus in jury deliberations. Justice Kennedy’s opinion for the court squarely relied on a C.A.C. amicus brief and the historical scholarship it showcased, by James Forman Jr., a professor at Yale Law School.
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Articles & Commentary
As we’re certain to hear during this week’s Senate Judiciary Committee confirmation hearing, conservatives insist that Judge Neil Gorsuch of the Denver-based 10th Circuit should be confirmed because he is an originalist who will decide cases by following the Constitution’s text and history. But a review of his record — both his opinions and his nonjudicial writings — suggests that he is a selective originalist.
[Senators] will be on solid ground to question whether Gorsuch’s professed “textualism” means fidelity to the whole text of a law, or using a-contextual readings, as Sen. Patrick Leahy observed in a 2008 hearing, “turning these laws on their heads and making them protections for big business rather than for ordinary citizens.”
Do litmus tests help explain a Supreme Court nominee’s judicial philosophy or do they offend the idea of an independent judiciary? As President Donald Trump prepares to speak to Congress tonight, that question casts a shadow over whatever he might say about his nominee to the Supreme Court, Judge Neil Gorsuch.
The fundamental question in Hernández v. Mesa is whether Hernández’s family can seek redress for this tragic abuse of power. Under the Constitution’s text and history, the answer is yes. The role of the courts in our system of separation of powers is to check official abuse of power and maintain the rule of law. There is no “border shooting” exception to these foundational principles.
At a time when the president flouts constitutional values, Congress shrinks from using its powers as a check and balance, and all three branches of government are dominated by one party, the independence of Supreme Court nominee, Judge Neil Gorsuch, is essential.
It is axiomatic that the attorney general must have a deep commitment to the principles at the Constitution’s core, a willingness to respect its values – regardless of his or her own policy preferences or those of the President – and a history of respecting substantive fundamental rights. Sessions fails each of these tests.
The Senate and the American people both have a right to know whether Sessions will stand up to Trump and truly be the people’s lawyer, not the President’s. General promises aside, Sessions didn’t demonstrate this at his hearing, which means there’s no reason for anyone to think that he will be willing to say “no” to this President, even though - as Sessions himself has said - that’s exactly what an Attorney General sometimes needs to do.
For weeks, President-elect Donald Trump has been assuring the American people that it would be easy for him to resolve the constitutional and conflict-of-interest problems posed by his vast business holdings. But, at his press conference Wednesday, he revealed just how wrong those promises were. Simple or not, Trump’s long-awaited plan does nothing to address the imminent collision between his presidency and the Constitution.
Since Trump refuses to sell his vast business holdings, these types of conflicts and the possibility of widespread corruption will hound him throughout his presidency. To preserve the integrity of the office of the president, Trump should reconsider and take the steps necessary to ensure that he - and the people who work in his Administration - are truly working for the people’s interest and not the president’s.