Summary
We support:
- Judicial nominees who demonstrate respect for the Constitution as a binding legal document
- An interpretive approach that recognizes both the original meaning of the Constitution and the need to apply it to circumstances the framers could not have anticipated
- Evaluating judicial candidates based on their record, including their willingness to follow the law even when it conflicts with their personal preferences
- Greater transparency from judicial nominees regarding their judicial philosophy
We believe:
- The constitutional framework requires that changes to fundamental rights generally occur through the legislative process rather than judicial rulings
- The policy compromise reflected in Roe v. Wade should now be addressed through the legislative process
- Supreme Court decisions on same-sex marriage and gun rights should be treated as settled law
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Background
One of the most important roles of the President and the U.S. Senate is the nomination and confirmation of candidates for the Supreme Court.
While issues such as judicial temperament and legal expertise are important, recent confirmation debates have focused primarily on judicial philosophy—particularly the distinction between “originalist” and “living Constitution” approaches.
The Role of the Constitution
We believe that the United States is fundamentally a constitutional democracy. This means that we are governed by a legal framework that both enables democratic decision-making and protects minority rights from the will of a temporary majority.
For such a system to function, the Constitution must be treated as binding—even when doing so conflicts with the preferences of a majority. If constitutional meaning can be freely adjusted to reflect current political views, the document risks losing its role as a stable foundation for governance and as a safeguard against majoritarian overreach.
Originalism and Interpretation
We are skeptical of interpretive approaches that treat the Constitution as fully adaptable to contemporary preferences. At the same time, we do not believe that a rigid or purely historical interpretation is sufficient.
The framers could not have anticipated many aspects of modern life. As a result, courts must sometimes interpret broad constitutional principles in ways that apply to new circumstances. The challenge is to do so while remaining grounded in the text and structure of the Constitution rather than effectively rewriting it.
Judicial Decision-Making
We believe that changes to public policy should generally occur through the legislative process rather than through judicial rulings, particularly when the Constitution does not clearly compel a specific outcome.
For example, the Constitution prohibits “cruel and unusual punishment.” While there are strong arguments for limiting the use of the death penalty, we believe that such limits should be established through legislation rather than by judicial interpretation alone. The framers were aware of capital punishment, and if they had intended to prohibit it outright, they could have done so explicitly.
Conversely, modern technologies have created new forms of intrusion into personal privacy that the framers could not have anticipated. In such cases, courts have a legitimate role in interpreting constitutional protections—such as the prohibition against “unreasonable searches and seizures”—in light of contemporary conditions.
Evaluating Judicial Nominees
We do not believe that judicial nominations should hinge on whether a candidate identifies with a particular interpretive label such as “originalism.”
Virtually no jurist adheres to a completely pure theory of constitutional interpretation. The more important question is whether the candidate’s record demonstrates a consistent effort to ground decisions in the Constitution and the law.
One of the strongest indicators of judicial integrity is a history of decisions that run counter to a judge’s apparent policy preferences but are nevertheless required by the law.
We also believe it is reasonable to expect judicial nominees to provide clear answers to questions about their judicial philosophy, including responses to hypothetical scenarios. While actual cases may differ from such hypotheticals, candidates for lifetime appointments should not be free to avoid answering legitimate questions designed to clarify how they approach constitutional interpretation.
Precedent and Settled Law
We do not believe that debates over judicial philosophy should serve as a proxy for relitigating specific past decisions.
We believe that certain major Supreme Court rulings should be treated as settled law in order to preserve stability and public confidence in the legal system. At the same time, where significant legal or political disputes remain, the appropriate venue for resolving those issues is often the legislative process rather than continued judicial reconsideration.
In particular, we believe that the policy compromise reflected in Roe v. Wade should now be addressed through the legislative process. This could occur at the state level, at the federal level, or through some combination of both, reflecting the outcome of the democratic process. The key principle is that such decisions should reflect durable political consensus rather than judicial mandate.
We also believe that the Court’s decisions on same-sex marriage and gun rights should be accepted as settled law
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