Are we really all originalists now?

The Senate Judiciary Committee concluded its hearing on the confirmation of Judge Ketanji Brown Jackson to the U.S. Supreme Court, and to hear the nominee tell it, we may soon see the second coming of Antonin Scalia on the high court. “I believe that the Constitution is fixed in its meaning,” she told senators on the committee. “I believe that it’s appropriate to look at the original intent, original public meaning of the words.” Such an approach is an important “limitation on my authority to import my own policy views.”

It is very encouraging to hear Judge Jackson say these things, as they represent the correct approach to constitutional adjudication. But senators should bear in mind that we have seen this show before, where a nominee calls him- or herself a textualist or originalist or pledges humility or restraint only to abandon any pretense of those virtues once on the court.

Introducing Ruth Bader Ginsburg as his nominee for the Supreme Court, President Bill Clinton hailed her “as one the nation’s leading centrist judges.” Later he said, “Judge Ginsburg has also proven herself to be a healer, what attorneys call a moderate.” And he ended, “Let me say in closing that Ruth Bader Ginsburg cannot be called a liberal or a conservative. She has proved herself too thoughtful for such labels.”

One year later, President Clinton nominated “moderate” judge Stephen Breyer, “a scholarly centrist jurist with bipartisan support,” according to the Los Angeles Times. The New York Times’ Linda Greenhouse, comparing Breyer to Ginsburg, concluded after his hearing that they were both “candidates of moderate, mainstream views” who rejected the Warren court’s belief that “the courts should function as engines of social change.”

More than a decade later, the next Democratic nominee up was Sonia Sotomayor. At her confirmation hearing, Sen. Jon Kyl read from then-Sen. Barack Obama’s floor statement explaining his vote on John Roberts. Obama had said that in “5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. … In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.” Obama argued that in those tough cases, a judge’s decision “can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

Asked about Obama’s approach, Sotomayor replied, “I wouldn’t approach the issue of judging in the way the president does. … Judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the law. The job of a [judge] is to apply the law.” She went on to say, “It’s not the heart that compels conclusions in cases, it’s the law.” And again, “We apply law to facts. We don’t apply feelings to facts.”

Finally, Obama’s second nominee was Elena Kagan, who, as dean of Harvard Law School, introduced the annual Scalia lecture by proclaiming, “We are all textualists now.” Kagan, who distinguished herself for the wittiest testimony of recent years, said similarly in her confirmation hearing that a justice’s job is to “apply what [the Constitution’s framers] say, what they meant to do. So in that sense, we are all originalists.”

As Georgetown Law professor Randy Barnett points out, Judge Jackson’s remarks represent “the triumph of originalism” in that her answers indicate the Senate and the American people expect judges who subscribe to the proper judicial approach. But our enthusiasm for the victory of our philosophy must be tempered by the frustrating experience of past confirmation fights: Democratic nominees consistently pledge moderation, centrism, and originalism while nominees, and then promptly decide cases as judicial activists once on the bench. No one would look at Ginsburg or Sotomayor’s record and say they have been anything other than liberals—indeed, the left celebrates them as such.

More important than a nominee’s words is his or her actual record as a judge and as a lawyer. This is where the rubber meets the road, where we see whether the philosophical approach pledged in a confirmation hearing was actually practiced on the bench or in the briefs. And experience shows this is where senators should focus their attention as they do their due diligence in advance of a confirmation vote. Conservative Americans will be watching.