Prof. Akhil Amar of Yale testified this morning at the Kavanaugh confirmation hearing. His prepared statement is here and the video is here. The full statement is well worth reading or watching. Prof. Amar notes that he voted for Hillary Clinton and supported every Democratic nominee to the Supreme Court, and he endorses the nomination of Judge Kavanaugh. He makes 10 points, and I will quote the second one here, endnotes and all:
2. Originalism is wise and nonpartisan.Studying the Constitution requires diligence and intelligence--especially for those, like Kavanaugh, who are "originalists," paying special heed to what the Constitution's words originally meant when adopted. I too am an originalist. In prioritizing the Constitution's text, history, and structure to discern its principles and to distill its wisdom, we originalists are following in the footsteps of George Washington, Alexander Hamilton, James Madison, John Marshall, Joseph Story, and Abraham Lincoln, among others.Originalism is neither partisan nor outlandish.4. The most important originalist of the last century was a towering liberal Democratic Senator-turned-Justice, Hugo Black, the driving intellectual force of the Warren Court, who insisted on taking seriously the Constitution's words and spirit guaranteeing free speech, racial equality, religious equality, the right to vote, the right to counsel, and much more. Among today's scholars, the originalist cited most often by the Supreme Court is also a self-described liberal and a registered Democrat--yours truly.5The best originalists heed not just the Founders' vision but also the vision underlying its amendments--especially the transformative Reconstruction Amendments and Woman Suffrage Amendment. I believe that Justice Kavanaugh will be in this tradition.6 On various vital issues--voting rights, governmental immunities, congressional power to enforce the Reconstruction Amendments--Justice Kavanaugh's constitutional views may well be better for liberals than were Justice Kennedy's.--------------------------
4 A great deal of journalistic nonsense has been published of late by some critics of originalism. One prominent scholar has recently purported to illustrate how honest originalism would create a parade of absurd and unthinkable results, see Erwin Chemerinsky, "Originalism is Bad for Justice. And Kavanaugh is a Big Believer," Sacramento Bee, Aug. 15, 2018. For pointed refutations of this and related canards, see Akhil Reed Amar, "Foreword: The Document and the Doctrine," 14 Harv. L. Rev. 27 (2000); AKHIL REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY (2012); Steven G. Calabresi, "Neither Kavanaugh Nor Constitutional Originalism Are Scary," The Hill, Aug. 21, 2018 (reprinted in Appendix C).5 According to a recent survey of scholarly (as distinct from judicial) citations, the two most cited originalist scholars in recent years are Professor Jack Balkin and yours truly--both self-described liberals and registered Democrats. See http://originalismblog.typepad.com/the-originalism-blog/2018/08/most-cited-originalist-scholars-2012-2017michael-ramsey.html6 Some modern conservative originalists--Justice Scalia most egregiously--failed to pay sufficient heed to the Reconstruction and Woman Suffrage Amendment. By contrast, Kavanaugh has taken pains to highlight the constitutional amends made by post-Founding amendments, in language more reminiscent of Thurgood Marshall than Antonin Scalia:We revere the Constitution in this country, and we should. We also, however, must remember its flaws. And its greatest flaw was the tolerance of slavery. That flaw cannot be airbrushed out of the picture when we celebrate the Constitution. It was not until the 1860s, after the Civil War, that this original sin was corrected in part, at least on paper, by ratification of the 13th, 14th, and 15th Amendments to the Constitution.But that example illustrates a broader point as well. When we think about the Constitution and we focus on the specific words of the Constitution, we ought to not be seduced into thinking that it was perfect and that it remains perfect. The Framers did not think that the Constitution was perfect. And they knew, moreover, that it might need to be changed as times and circumstances and policy views changed.
High level, intelligent, and reasoned discourse from the opposing side? What a refreshing change!
Unfortunately, no. Professor Amar was speaking in support. High level, intelligent, and reasoned discourse remains completely absent from those opposing the nomination.
Still waiting for that refreshment.