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Durbin Pushes Back on Originalism as GOP Test for Judges (1)

June 9, 2021, 3:22 PM; Updated: June 9, 2021, 5:37 PM

Senate Judiciary Committee Chair Richard Durbin (D-Ill.) pushed back on a Republican litmus test for President Joe Biden’s judicial nominees that they must be originalists, citing criticism that the Constitution didn’t account for the rights of Black people, women, or other minority groups.

“We should not expect to require every judicial nominee coming before this committee to ascribe to originalism as their judicial philosophy,” Durbin said at the start of a Judiciary hearing on Wednesday.

Originalism is a legal philosophy often held by conservatives and libertarians that generally interprets the Constitution as it would have been originally understood at the time it was written. President Donald Trump was committed to naming originalists to the federal bench.

Durbin quoted Chicago Mayor Lori Lightfoot, who in October 2020 said she wasn’t an originalist because the Constitution didn’t originally consider her a person as a Black gay woman.

Most importantly, Durbin said, is whether nominees “have the hallmarks of what makes a good judge.” That includes being independent, setting aside personal beliefs, and approaching every case with fairness, Durbin said.

The comments from Durbin came after Sen. Chuck Grassley (Iowa), the committee’s ranking Republican, said at a markup for judicial nominees in May that his support for Biden’s circuit nominees would depend on whether they are committed to the original meaning of the Constitution.

He was among the Republicans who voted against Biden’s first two circuit picks to come before the Judiciary Committee, Ketanji Brown Jackson and Candace Jackson-Akiwumi, though he voted in favor of all three district court picks approved that same day.

At the hearing on Wednesday, Grassley defended the conservative judicial philosophy in response to Durbin’s comments.

“I think any originalist would admit that you take into consideration all of the constitutional amendments,” Grassley said.

The hearing featured two appeals court judges—Eunice Lee, who is nominated to the Second Circuit, and Veronica Rossman, who is nominated to the Tenth Circuit—and three selections for the Western District of Washington, David Estudillo, Lauren King, and Tana Lin.

Defender Background

Democrats touted the diversity the nominees would bring to their respective courts and, in particular, their different professional experiences. Both Lee and Rossman are former public defenders, a background uncommon on the federal bench.

Republicans were focused on the how nominees with experience primarily in criminal cases would fare in those involving civil litigation, which is more common in appeals courts.

“A circuit judge needs to be a generalist. Criminal defense lawyers aren’t going to be criminal defense judges. They’ll be hearing every kind of federal appeal,” Grassley said.

Sen. Tom Cotton (R-Ark.) asked a series of questions of Lee, an assistant federal defender in New York, about civil procedure. When questioned by Cotton about what entitled a party to a civil jury trial, Lee said her practice was primarily in criminal law and she wasn’t familiar with all of the civil procedure rules.

“Certainly, though, I have experience, as I noted before, in terms of figuring out new issues when they’ve been presented to me and determining what the law is and how it applies to the particular circumstances,” Lee said.

Philosophy

Originalism came up again in Republican questions for the nominees about their judicial philosophy.

Sen. John Kennedy (R-La.) asked Lee whether she would interpret the Constitution to mean what it did when written. Lee said she would refer to precedent, but Kennedy pressed her again on her philosophy and originalism.

“I don’t have a personal judicial philosophy,” Lee said.

“You’re going to be on the United States Court of Appeals, if you’re confirmed, and you don’t have a judicial philosophy about how the United States Constitution should be interpreted?” Kennedy said, interrupting her.

Kennedy later said he couldn’t vote for the nominees unless he knew the approach they were going to use to interpret the Constitution.

Durbin called the questions about their judicial philosophy “misleading,” and noted that during the Trump administration Republican nominees often avoided answering similar questions.

(Updates with additional reporting throughout. )

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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