Thursday, August 9, 2018
Check out Aziz Huq's (U. Chicago) piece in PoliticoMagazine, Why You Shouldn't Care Whether Kavanaugh Is an "Originalist." Answer: The label has lost all but lost its meaning in public (non-scholarly) debates, and it just can't help us understand Judge Kavanaugh's approach.
Liberals and conservatives alike can do better [than focusing only on whether Judge Kavanaugh is an "originalist"]. The test of a judge's mettle is not whether they are an "originalist." That term just isn't as illuminating as many think. All judges, whether liberal or conservative, account for the Constitution's original understanding at times. All also rely on other sources of law. Even as legal scholars have refined precise definitions of originalism, the heat of partisan debate has reduced the term in public life into little more than code for substantive positions on abortion, gun control and the like.