Durbin pushes back originalism as GOP test for judicial choices

Senate Judiciary Committee Chairman Richard Durbin (D-Ill.) Rejected a Republican litmus test for President Biden’s judicial candidates that they must be originals, citing criticism that the Constitution ignored rights blacks, women or other minority groups.

“We should not expect to require every judicial candidate appearing before this committee to attribute its judicial philosophy to originalism,” Durbin said at the start of a court hearing Wednesday.

Originalism is a legal philosophy often supported 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 had pledged to appoint originals to the federal bench.

Durbin quoted Chicago Mayor Lori Lightfoot as saying in October 2020 that she was not an original because the Constitution did not originally consider her a gay black woman.

Most important, said Durbin, is whether the nominees “have the characteristics of what makes a good judge.” It means being independent, putting aside personal beliefs and approaching each case fairly, Durbin said.

Durbin’s comments come after Senator Chuck Grassley (Iowa), the committee-ranking Republican, said during a markup for judicial candidates in May that his support for Biden’s circuit candidates would depend on their commitment to meaning original of the Constitution.

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

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

“I think any original would agree that you take all constitutional amendments into consideration,” Grassley said.


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