At a June 9 Senate Judiciary Committee hearing for Second Circuit nominee Eunice Lee and Tenth Circuit nominee Veronica Rossman, Louisiana Sen. John Kennedy announced that he will not vote for any circuit court nominee if he doesn’t know the approach they will take to interpreting the Constitution. This is a turnaround for him, since he did not apply that standard to Trump nominees.
Kennedy asked Lee whether the Constitution should be interpreted as it was understood at the time of adoption. She responded that she does not have a personal philosophy of constitutional interpretation, and that she would follow Supreme Court and Second Circuit precedent on factors to consider in interpreting particular constitutional provisions. For instance, the Supreme Court has said that courts should consider modern standards when determining if a punishment is “cruel and unusual.” Kennedy did not like that answer, and he warned that he could not vote for a circuit nominee without knowing how she would interpret the Constitution.
But Kennedy did not have a problem when Trump nominees gave similar answers. For example, one of Trump’s earliest circuit court nominees, John Bush, told committee members that they had no business asking him about constitutional interpretation. Bush had spent two decades leading a local affiliate of the Federalist Society, an organization centered on promoting certain ways of interpreting the Constitution. Moreover, he had given speeches on the subject. So Sen. Dianne Feinstein asked him if “judges should always employ an originalist approach to interpretation of the Constitution.” Bush replied:
My personal views on constitutional interpretation will be irrelevant if I am fortunate enough to be confirmed to the Sixth Circuit. As a lower court judge, I would be bound to apply the precedents of the Supreme Court and Sixth Circuit in deciding any question of constitutional interpretation that comes before me. As I also said [previously], judges should respect precedent.
Sen. Kennedy did not complain. In fact, he voted to confirm Bush, despite – or perhaps because – Bush had an agenda he was trying to hide.
Unlike Trump, President Biden has not outsourced selection of his judicial nominees to any outside organization, let alone one founded to advance certain ways to interpret the Constitution.
All lawyers studied various schools of constitutional interpretation in law school, and a confirmation hearing is an appropriate opportunity for senators to ask if a nominee has ever adopted any particular one of them. But if Sen. Kennedy is going to adopt a new standard for judging Biden nominees that he did not apply to Trump nominees, he should explain why.