The Big Picture
Last week, the Senate Judiciary Committee considered the nomination of Judge Ketanji Brown Jackson of the D.C. Circuit to replace Justice Stephen Breyer on the Supreme Court. On the one hand, confirmation hearings are problematic because nominees from both parties refuse to comment on cases that might come before them–citing the Ginsburg Rule and the Model Code of Judicial Conduct. On the other, they are helpful because nominees answer questions about their judicial philosophy. The three most crucial issues to a Supreme Court nominee’s judicial philosophy are originalism, textualism, and precedent.
Originalism is a theory of constitutional interpretation that holds that the Constitution should be interpreted based on what the public understood it to mean at the time of ratification. While there are some issues with originalism, the issue is not whether a nominee is an originalist, but rather how much weight they place on it. For example, everyone agrees that a member of the U.S. House of Representatives must be at least 25 years old (art. I § 2), a member of the U.S. Senate must be at least 30 years old (art. I § 3), and the President of the United States must be at least 35 years old (art. II § 1). Those ages did not change over time, even though life expectancy has changed dramatically since ratification. Instead, the more difficult issues are how originalism interacts with the Court’s precedents, and what happens when the history is inconclusive or points in multiple directions that lead to several different outcomes.
Textualism is a doctrine closely associated with originalism. It holds that when reading a statute, the correct interpretation is the ordinary meaning of the words in the context of the statute. If nothing in the statute commands against that interpretation, the ordinary meaning in context is the correct interpretation. The emphasis is on the text to prevent judges from looking at legislative history, such as a bill sponsor’s statement or a committee report, to find an answer that the text does not provide for. The text of the statute is the law, not what a legislator or committee report said. Difficult issues can arise with textualism when the ordinary meaning in context leads to an absurd result under the statute, but judges have other interpretive tools to deal with those problems.
How a nominee views the Court’s precedents is important because the Supreme Court is the only court that can overturn itself, and it can have the final word on overturning lower federal or state courts (in some contexts). However, it is very rare to get answers out of a nominee on this issue because so many of the Court’s precedents make their way back to the Court. Therefore, nominees cite the Ginsburg Rule or the Model Rules (see above) and do not answer these questions. Generally, a nominee might say they consider a host of factors the Supreme Court already considers for when to overturn a precedent. As a result, very little, if anything, comes from a nominee’s answers on this issue.
In answering questions before the Senate Judiciary Committee, it is important to look at how President Donald J. Trump’s nominees answered questions in relation to their records on the bench. All three nominees gave originalist and textualist answers before the committee and had records on the bench to back up their answers. When it comes to Supreme Court nominees, a record of how they have ruled only underscores that they mean what they tell the committee.
Justice Neil Gorsuch
At his confirmation hearing, then-Judge Neil Gorsuch did not want to use labels to describe his philosophy for fear that it causes people not to engage and serves as another way to divide. (See page 162). In a back and forth with Senator Ted Cruz (R-TX), Gorsuch said every judge is concerned about the original meaning of the provision being interpreted and listed several Supreme Court cases as good examples. (See page 162). Gorsuch added the Constitution has a “fixed meaning” and judges need to go back to look at the evidence of what an amendment was understood “at the time to protect.” (See page 163). He added that “the Constitution does not change. The world around us changes, and we have to understand the Constitution and apply it in light of our current circumstances.” (See page 156). Finally, Gorsuch ultimately accepted the label of originalist, describing it as embracing “the original public understanding of the Constitution”; which means he tries “to understand what they (the words) mean, what a reasonable person at that time would have understood they mean, because that is the fixed meaning I can latch onto and say I am enforcing that, not my will.” (See page 242).
Gorsuch’s originalist judicial philosophy was reflected in several circuit court decisions. In 2016, he wrote a concurring opinion questioning whether the Constitution provided a right to be free from malicious prosecution. See Cordova v. City of Albuquerque, et al. (10th Cir. 2016). In rejecting the argument, Gorsuch said the Constitution is not “some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” (See Gorsuch concurrence at 1.)
In 2015, Gorsuch reinvigorated the non-delegation doctrine in a dissent from the denial of rehearing en banc in a case over the Sex Offender Registration and Notification Act (SORNA). See U.S. v. Nichols (10th Cir. 2015). For sex offenders convicted before SORNA was enacted, the Attorney General (A.G.) has unlimited discretion in promulgating regulations for when they should be required to register their location or face another criminal conviction. The law does not require the A.G. to act within a certain time frame, by a certain date, or even at all. Gorsuch’s concern was that this broad delegation might violate the non-delegation doctrine, which holds that an act of Congress can be unconstitutional if it grants lawmaking power to another branch of government. It is based in the Constitutional text that provides “[a]ll legislative powers herein granted shall be vested in a Congress of the United States…” See U.S. Const. art. I, § 1. While the doctrine makes sense in theory, it is difficult in practice because it is hard to draw a line between when Congress has or has not delegated too much power. Gorsuch’s opinion is particularly interesting considering the Supreme Court has not held that an act of Congress violated the non-delegation doctrine since the 1930’s. See A.L.A. Schechter Poultry Corp. v. U.S. (1935).
In a 2016 administrative law case, Gorsuch wrote a 23-page concurring opinion questioning the constitutionality of Chevron deference. See Gutierrez-Brizuela v. Lynch (10th Cir. 2016). Under Chevron, courts defer to an agency’s interpretation of an ambiguous statute when Congress has tasked the agency with enforcing the statute. However, a court will not defer if Congress has not instructed the agency to enforce the statute, the statute is unambiguous, or the agency’s interpretation is unreasonable. See Chevron U.S.A., Inc. v. NRDC (1984). Gorsuch said Chevron allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.” (See Gorsuch concurrence at 1.) His main concern was that under Chevron, courts are not fulfilling their duty to interpret the law but are deferring to another branch of government to do the job courts are instructed to do. He concluded that “[w]e managed to live with the administrative state before Chevron. We could do it again.” (See concurrence at 22.) A judge that writes separately in three instances to say the Constitution must be interpreted by its original public meaning, questions the constitutionality of Chevron deference, and seeks to reinvigorate the non-delegation doctrine has serious originalist tendencies.
On textualism, Gorsuch’s opening statement asserted that “[j]udges are not free to rewrite statutes to get results they believe are more just…[t]hat is not their job. That power is retained by the people, acting through their elected representatives.” (See page 3). When he interprets a statute, Gorsuch said his inquiry entails “[w]hat does that text mean? What could a reasonable reader understand that text to mean”? (See page 163). He also told Senator John Cornyn (R-TX) that “[a] judge should try and reach a fair interpretation, what a reasonable person could have understood the law to mean at the time of his actions.” (See page 131).
Early in his tenure on the 10th Circuit, Gorsuch emphasized his textualist bona fides in a concurring opinion in which he focused on the plain meaning of the statute. See U.S. v Manning (10th Cir. 2008). In Manning, Mr. Manning was originally sentenced to 37 months’ imprisonment and ordered to pay almost $27k in restitution for misappropriating funds as a fiduciary. However, Manning lied to the probation officer by omitting $40k in his 401(k) retirement account in his statement of net worth, which the officer needed to prepare the presentence report for Manning’s conviction. As a result, Manning paid less in restitution than he should have. Manning was prosecuted for making a false statement, but the district court held the “judicial function” exception to the false statement statute applied, and it dismissed the indictment. See 18 U.S.C. § 1001(b). The 10th Circuit reversed relying on the plain language of the statute, and the legislative history.
Gorsuch started by noting the breadth of the statute that makes it illegal for “whoever, in any matter within the jurisdiction of the…judicial branch of the Government of the United States… makes any materially false… statement…” See id. § 1001(a)(2). He then focused on the text of the exception, which provides that the false statement provision “does not apply to a party to a judicial proceeding…for statements, representations, writings or documents submitted by such party…to a judge or magistrate in that proceeding.” See Id. § 1001(b).
Gorsuch deduced several textual clues from this language. First, he noted that Congress knew statements submitted to judges and magistrates are different from other statements made in judicial proceedings. Moreover, Congress intended liability to attach for false statements generally made in a judicial proceeding, exempting only false statements submitted to a judge or magistrate. (See Gorsuch concurrence at 2). The reader is notified by the broad text of “jurisdiction of the…judicial branch” under the main provision, but “submitted…to a judge or magistrate” in the exception. Next, Gorsuch focused on the definition of “submitted,” which he determined meant to “send or commit for consideration, study, or decision.” (See concurrence at 3-4). This is important because Manning submitted his information to the probation officer. The officer has an independent duty to find and report relevant information and recommend a sentence for the judge. In other words, Manning submitted his information to a probation officer, not the judge. Therefore, because a submission to a judge never took place, Manning could be criminally prosecuted under the statute. (See concurrence at 5-7). Gorsuch’s concurrence displays a forthright textualist analysis, focusing on the words of the statute, not the legislative history.
Justice Brett Kavanaugh
At his Supreme Court confirmation hearing, then-Judge Brett Kavanaugh described his originalist methodology as putting a heavy emphasis on what the history says in addition to the text and original public meaning. He said that originalism focuses on the original public meaning of the constitutional text. But he noted that originalism means different things to different people. When then-Solicitor General Elana Kagan was nominated to the Supreme Court, she said “we are all originalists now.” Kavanaugh took that statement to mean “she meant the precise text of the Constitution matters, and by that, the original public meaning, of course, informed by history, and tradition, and precedent. Those matter as well… the words of the Constitution matter.” (See pages 195-196). But he added his own take on the importance of historical practice. “[Y]ou also look at historical— the history. You look at the tradition. Federalist 37 tells us to look at the liquidation of the meeting by historical practice over time. And then you look at precedent, which is woven into Article III, as I said in Federalist 78… Paying attention to the words of the Constitution… precedent, historical practice subsequent to the passing of the text… What is the historical practice and precedent, which I have said is rooted in Article III. Those things all go into it, but the words, the original public meaning are an important part of constitutional interpretation…” (See page 196).
When asked by Senator Ted Cruz (R-TX) what makes a judicial activist, Kavanaugh said it is a judge “who lets his or her personal or policy preferences override the best interpretation of the law… [s]o a judge who strikes down a law as unconstitutional when the text and precedent do not support that result or a judge in the other direction who upholds a law as constitutional when the text and precedent would suggest that the law is, in fact, unconstitutional.” (See page 211). Finally, when asked about the importance of the constitutional amendment process, Kavanaugh said that “the job of the people, which is the Congress and the State legislatures, is to amend the Constitution. It is not the job of judges to do that on our own. Obviously, that is a basic divide of constitutional responsibility that is set forth right in the text of Article V of the Constitution. (See page 178).
During his time on the D.C. Circuit, Judge Kavanaugh wrote three opinions that displayed his originalist methodology and deep appreciation for the separation of powers. In Meshal v. Higgenbotham (D.C. Cir. 2015), Meshal brought a Bivens claim against several Federal Bureau of Investigation (FBI) agents arguing that they violated his constitutional right when they detained, interrogated, and tortured him over the course of several months in three African countries. A Bivens claim originates from Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1970), in which the Court held Bivens had an implied constitutional cause of action for money damages against federal agents that made a warrantless entry of his apartment, searched his apartment, and arrested him on narcotics charges without probable cause. While Bivens is controversial for many reasons, the often-cited one is that it is the role of the legislature–not courts–to create causes of action. Since Bivens, the Court has refused to expand a Bivens claim to other circumstances. In Meshal, the D.C. Circuit rejected the Bivens claim because the court was asked to expand Bivens into a new category: a terrorism investigation conducted overseas by federal agents. In rejecting the claim, the court noted that for a cause of action to exist here, it needed to come from Congress or the Supreme Court. (See page 23).
Judge Kavanaugh wrote a concurring opinion explaining the importance of the separation of powers in the Bivens context. First, he recognized that the Court has not expanded Bivens past its facts and that it is traditionally the legislature’s job to come up with new torts, not the courts’. He framed the case as an issue of “[w]ho [d]ecides? In particular, who decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda and other radical Islamic terrorist organizations? In my view, the answer is Congress, not the Judiciary.” (See Kavanaugh concurrence at 3). He concluded by respecting the judgment of Congress not to enact a tort in this context, and said that it is not the role of judges to make a decision that Congress has chosen not to. (See concurrence 5-6).
While on the D.C. Circuit, Judge Kavanaugh also heard a constitutional challenge to the structure of the Consumer Financial Protection Bureau (CFPB). In response to the 2008 financial crisis, Democrats in Congress passed and President Obama signed into law the Dodd-Frank Act of 2010. Among other things, it created the CFPB to enforce a series of federal statutes and regulations. This multi-billion-dollar agency is run by a single person, nominated by the president and subject to Senate confirmation, but cannot be fired except for good cause. When the head of a government agency cannot be fired except for good cause, the typical label used is it represents an “independent government agency.” Agencies of this kind represent a far departure from the norm.
While the Court upheld the independent structure of the Federal Trade Commission in Humphrey’s Executor v. U.S. (1935), it did so in part because it was a multi-member commission. In other words, when several members serve as commissioners, they can check the actions of each other. With one person, there is no check. Moreover, the traditional rule is that the heads of federal agencies (Departments of Justice, Defense, etc.) are fireable at-will by the president. The main reason is because Article II of the Constitution vests “all executive power” in the president. See U.S. Const., art. II § 1. For constitutional purposes, the president is the executive branch. Under a good cause standard, the president cannot fire agency heads for political considerations, a bad relationship, or a refusal to take an action that is arguably legal, among other reasons. Moreover, because the president is the only politically accountable member of the executive branch, it would be unfair to the voters that an agency head could thwart or hinder the president’s actions because of good-cause protections. For the president to have full control of the executive branch in the way the Constitution demands, agency heads need to be fireable at will.
Judge Kavanaugh wrote the opinion in PHH Corporation v. CFPB (D.C. Cir. 2016) and held that the CFPB’s structure was unconstitutional. He recognized the importance of history and tradition when the constitutional text might not answer the question. “[H]istory and tradition are critical factors in separation of powers cases where the constitutional text does not otherwise resolve the matter.” (See page 8). He continued, “[t]he CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power.” (See page 9). He concluded that “[i]n light of the consistent historical practice under which independent agencies have been headed by multiple commissioners or board members, and in light of the threat to individual liberty posed by a single-Director independent agency, we conclude that Humphrey’s Executor cannot be stretched to cover this novel agency structure.” (See pages 9-10). The Supreme Court would later agree with Judge Kavanaugh in holding the CFPB’s structure unconstitutional in Selia Law LLC v. CFPB (2020).
Finally, in a dissent from a denial of an en banc hearing in U.S. Telecom Association v. FCC (D.C. Cir. 2017) when the full D.C. Circuit refused to hear a previous panel’s decision upholding the Federal Communications Commission’s net neutrality rules, Judge Kavanaugh wrote a vigorous dissent focusing on the major questions doctrine. Under the major questions doctrine, a court carefully considers an executive branch regulation out of concerns that the regulation is costly, far-reaching, and that the agency has never acted this way in its history. Kavanaugh noted that the net neutrality rule was one of the most consequential and far-reaching regulations ever issued in the history of the U.S., and because Congress did not clearly authorize the FCC to take this action, the FCC did not have this power. (See Kavanaugh dissent at 1). His dissent also focused on the major separation of powers problems that exist when agencies promulgate broad regulations based on ambiguous statutory text that has never been used in the way the agency is currently acting. (See dissent at 3-5). These three cases indicate Judge Kavanaugh’s serious appreciation for the separation of powers and originalist principles that underlie the doctrine.
When interpreting statutes, Judge Kavanaugh said in his confirmation hearing that judges “have to stick to the laws passed by Congress. You [Congress] make the policy. We will follow the policy direction that you put into the laws that are enacted, passed by the House and Senate, signed by the President. We do not rewrite those laws.” (See pages 139-140). Kavanaugh continued, “[s]o as judges I think, number one, we have to recognize the process that you go through as legislators. That means adhere to the compromises that are made, the text as written.” (See pages 177-178). He also stressed the importance of understanding that legislation is compromise, and a judge that goes outside the text can upset that carefully crafted compromise. “Legislation is a compromise. And when we depart from the words that are specified in the text of the statute, we are potentially upsetting the compromise that you all carefully negotiated in the legislative negotiations that you might have had with each other.” (See pages 194-195). He concluded that a way judges often depart from the statute to reach their preferred policy goals is by reading floor statements or committee reports when the statute’s language gives the opposite result. “Another way is that judges would sometimes use a snippet of a Committee report or a floor statement and say that is really what Congress was getting at in terms of the statute. And therefore, we are going to follow that Committee report or floor statement rather than following the text of the statute. So that is another way I think in which judges would depart from the text of the statute.” (See page 238).
A good example of Judge Kavanaugh’s textualism was displayed in his dissent in AGRI Processor Co., Inc., v. NLRB (D.C. Cir. 2008). The case involved whether illegal immigrants are considered employees and therefore protected under the National Labor Relations Act. When the company’s employees voted to join the United Food and Commercial Workers union, the vote included votes by illegal immigrants working for the company. When the company learned of the vote and checked the social security numbers of these employees, it learned of their illegal status and fired them. The company then asked for the union vote to be thrown out because illegal immigrants should not have been allowed to participate because under federal law they cannot be employed. The D.C. Circuit held the vote would stand and illegal immigrants can be employees under the National Labor Relations Act.
Judge Kavanaugh’s textualist dissent started from a very commonsense point. How can illegal immigrants be employees under federal law if it is illegal for them to work in the United States? (See Kavanaugh dissent at 1). In applying a previous Supreme Court decision, he recognized that while the Court held that illegal immigrants could be employees under federal law as it stood in 1984, he noted that Congress took the affirmative step of making it illegal in 1986. Under immigration law today, it is both a criminal and civil violation for an employer to knowingly hire an illegal immigrant, and if the employer learns it hired an illegal immigration, it must fire the worker immediately. (See dissent at 4). Kavanaugh also attacked the majority for relying on legislative committee reports in connection with the new immigration law that gave the majority the answer it wanted. “Committee reports are highly manipulable, often unknown by most Members of Congress and by the President, and thus ordinarily unreliable as an expression of statutory ‘intent.’ Committee reports are not passed by the House and Senate and presented to the President, as required by the Constitution in order to become law.” (See dissent at 8). Kavanaugh’s dissent represents a commonsense application of textualist principles, and a rejection of using resources outside the statute.
Justice Amy Coney Barrett
At her confirmation hearing, then-Judge Amy Coney Barrett was more forceful in defense of originalism and textualism than Gorsuch or Kavanaugh. In a series of answers to Senator Lindsey Graham (R-SC), Barrett first said she was an originalist and then defined originalism as “I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.” (See Barrett at 07:00). She later said she approached statutes through a textualist understanding and defined that as “the judge approaches the text as it was written with the meaning it had at the time.” (See Barrett at 07:38). Importantly, Barrett mentioned that there are different schools of originalism and Justices Scalia and Thomas sometimes disagreed. See Brown v. Entertainment Merchants Association (2011).
Judge Barrett’s most famous opinion on the 7th Circuit Court of Appeals was Kanter v. Barr (7th Cir. 2019). Instead of hiding from her dissent, she told Senator Dianne Feinstein (D-CA) that it was a good example of her judicial philosophy. (See Barrett at 41:56). In Kanter, Ricky Kanter pleaded guilty to a count of mail fraud for falsely reporting that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare. Kanter had served his time and paid the penalty, but because mail fraud was a felony, federal law and state law prohibited him from ever owning a firearm. Kanter filed a Second Amendment challenge.
While the majority held that both statutes were constitutional, Barrett held that the statutes were unconstitutional as applied to Kanter because he engaged in a non-violent offense, and he had no otherwise violent characteristics. Barrett spent almost ten pages outlining the relevant history (see pages 33-41), eight pages responding to the argument that non-violent felon disbarment statutes did not exist because the penalties were otherwise very severe (see pages 41-49), and six pages detailing how non-violent felons did lose other rights like voting or being able to serve on a jury, even though they did not lose their Second Amendment rights (see pages 49-54). In other words, she engaged in an analysis that is as thoroughly originalist as possible. Barrett then applied the precedential constitutional standard of review with history as a backdrop to find that the laws violated the Second Amendment as applied to Kanter. (See pages 54-64). From Kanter, it is easy to conclude that Barrett is a committed originalist.
Later in the hearing, Senator Chuck Grassley (R-IA) explicitly asked Barrett about the use of legislative history when it comes to interpreting statutes. Barrett said “[w]hat governs of course, is the text of the statutes. So the legislative history can never supersede the text and it should never substitute for the text of the statute…[a]nd when the text answers the question, you don’t go to legislative history. And there’s some pragmatic reasons to be careful about doing so.” (See Barrett at 09:59). In response to Senator Mike Lee (R-UT), she asserted multiple times that legislative history is not the law, the text of the statute is because only it went through the constitutional process of bicameralism and presentment. (See Barrett at 01:32:08 and 01:33:16). Barrett also noted that Scalia would look at legislative history “to see whether what seemed unthinkable actually was unthinkable.” (See Barrett at 11:06). As stated above, an issue with textualism occurs when the judge reaches an absurd result when applying the ordinary meaning of the statute. In those cases, judges might look at legislative history to make sure the result makes sense.
An example of Barrett’s textualist bona fides was displayed in her dissent in U.S. v. Uriarte (7th Cir. 2020). Uriarte was convicted of several serious federal offenses, including racketeering, drug crimes, and two counts of using a firearm to commit a kidnapping. The 7th Circuit ultimately vacated his sentence because the district judge found the brandishing (showing the firearm) element instead of a jury, rendering Uriarte’s sentence unconstitutional under Supreme Court precedent. The case was remanded to the district court for a new sentence. On remand, Uriarte asked the district court to apply the newly-enacted First Step Act that would not apply a mandatory minimum sentence he would have been subject to, thereby resulting in a lesser sentence. The district court agreed with Uriarte and applied the First Step Act.
The 7th Circuit sitting en banc (full court) affirmed the district court. The statutory provision provides, “[t]his section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” The majority held the text did not differentiate between defendants who had their sentence vacated and those that had not been sentenced; therefore, it treated Uriarte’s situation as if he had never been sentenced. (See pages 8-10). But besides the text, the majority also relied on Congress’ intent and the purpose of the statute.
In dissent, Barrett held the statute did not apply to Uriarte because he had been sentenced and it did not matter that it was vacated. First, Barrett read “imposed” as a past act that occurs when the district court imposes a sentence, not based on the status of a defendant. Second, she noted the difference in “a sentence” verses “the final sentence.” “[A] sentence” is much more flexible and can refer to any sentence versus a “final sentence,” which refers to the final, legally binding sentence. Moreover, the statute uses the phrase “final” in a preceding section, thereby alerting the reader that the statute does differentiate between the terms “a” and “final.” Further, Barrett also noted the common usage of the terms providing an example that if someone was asked whether Uriarte had been sentenced, the answer would have been yes, but that it was vacated on appeal. (See pages 20-23). Finally, she attacked the majority for using “nontextual background principles” to strengthen its holding, instead of correctly recognizing that these principles “cannot overcome the statutory text.” (See pages 23-28). Barrett’s dissent shows she is a very committed textualist.
President Trump nominated three committed originalist and textualist judges to the Supreme Court. Each gave strong answers to the Senate Judiciary Committee that reflected their honest records as a judge. Their records affirm that they meant what they told the committee. Moreover, several Supreme Court decisions since they have been confirmed have demonstrated their commitment to these principles: they did not just say these things at the hearing to get confirmed by a Republican Senate.
A nominee that says he or she will abide by the original public meaning of the Constitution–the text, history, and tradition–is a great thing. We want committed originalists on the Supreme Court. But if a nominee does not have the record to back up those views either as a lower court judge or other work they’ve engaged in, it becomes difficult, if not impossible, to discern what they will do on the Supreme Court.