It has been suggested that the Senate should not ask nominees about cases but only about the nominee's constitutional theory. A high-sounding suggestion, but one which founders on even slight consideration of the point of such an inquiry. Of course the idea that the Senate would adopt a standard far above that of the Administration -- which no one not under the influence of strong psychotropics could believe does not attend closely to cases and political soundings -- is not a very attractive one. But that is neither here nor there, and not the problem with the suggestion. The problem is that the suggestion suggests a rather odd and rather implausible view of theory and how one should go about assessing a theory, in particular a normative theory such as one of constitutional interpretation.
It makes little sense to attempt to assess a theory without considering how the theory plays out in the world, what the concrete implications are. If we cannot look to the cases as (at least part of) the measure of success for a theory, then we have only such things as internal consistency. In that case, why would not the simplest theories be preferable? Cases argued even days to be decided for the appellant and odd days for the appellee? Not a constitutional theory? Well, why not? How could one make that claim unless one was looking at the cases? Maybe the absence of reference to the text is a problem. That is a low hurdle: Adopt the interpretation of the text advanced by the Petitioner on even days and otherwise not. All days are either even or odd, so there you have it -- consistency. Obviously this is ridiculous, and it is ridiculous just because it has nothing to do with the concrete realities for which the theory is presumably constructed.
Maybe then it is because judges should not be asked their views about cases not yet before them, or such like. Again, that cannot be right. Consider an originalist (I doubt there are more than a dozen in the country) -- what does that mean if we cannot delve into the way such a fellow would decide cases? We cannot stop with original meaning or original intent or original understanding, etc. None of that talk tells us enough to assess the theories until placed in the context of cases, whether past or hypothetical. Nominee says 'I am an originalist'; Senator asks if the First Amendment applies to the states. Surely one would want to know the nominee's view about that question, and the answer is an answer about cases. (An originalist has no choice in the answer -- every version must say that the First Amendment does not apply to the States and that it is merely hortatory.) The point is, outside of the context of judicial confirmations, not likely to elicit any controversy. One cannot do moral theory, that is, elaborate or analyze or talk sensibly about moral theory without talking about what the subject theory is likely to mean in the contexts of application. For example, the so-called 'demandingness' objection to utilitarianism matters at all only if it has some practical grip. One of the reasons virtue theory remains an eddy of backwater contemplation is that it is more or less impossible to derive any practical advice at all from it. It is as helpful as "Don't be bad!"
In the context of constitutional theory, the practical imports matter to the theory, not merely to the political warfare that is now attendant to nomination. A nominee says that they accept stare decisis and is a strict constructionist (or put in originalism of your favorite color, if you prefer) -- what does this mean, really? Brown goes or not? Does the 14th apply the first 10 to the states? Is Roe to remain or not (and if not, what does the 9th mean to you)? All of these kinds of questions are perfectly appropriate for gaining an understanding of a constitutional theory sufficient to assess it. And all of these sorts of questions amount to asking about cases. I don't see that as wrong because I don't see any route to understanding a normative theory of the sort constitutional interpretation is (or purports to be).
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