Kirsch pressed on originalism at 7th Circuit confirmation hearing

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As many judicial nominees before him have done, Thomas Kirsch II told the U.S. Senate Judiciary Committee that he would apply the law as written but his explanations of how he would interpret statutes brought intense scrutiny from senators on both sides of aisle.


Krisch, U.S. Attorney for the Northern District of Indiana, has been nominated for the Indiana seat on the 7th Circuit Court of Appeals. The seat was last occupied by now-U.S. Supreme Court Justice Amy Coney Barrett and was previously held by now-retired Judge John Tinder.

In introducing Kirsch to the Judiciary Committee during the confirmation hearing Wednesday, Sen. Todd Young, R-Indiana, highlighted the nominee’s career accomplishments including his time working in the public sector.

Kirsch clerked for Tinder from 2000 to 2001 when the judge was sitting on the U.S. District Court for the Southern District of Indiana before becoming an assistant U.S. Attorney in Northern Indiana from 2001 to 2008. He went into private practice, working as a partner at Winston & Strawn LLP in Chicago from 2008 to 2017 and then returned to the U.S. Attorney’s office in 2017 when he was confirmed on a voice vote by the U.S. Senate.

“He’s a man of character, he’s a man of integrity and he believes in the rule of law,” Young said. “He understands that the role of judges is to apply the law and constitution as written and, of course, is not to legislate from the bench.”

During questioning, Kirsch said as a judge he would be bound by all U.S. Supreme Court precedent and he would apply the law faithfully and impartially in every case. He also noted in interpreting the law, he would consider the “ordinary meaning of the text at the time the text was written.”

That statement caught the attention of Sen. Sheldon Whitehouse. The Rhode Island Democrat began his questioning by saying his impression was that Kirsch seemed “capable, qualified, calm and without ulterior motive in going onto the circuit court.” However, Whitehouse indicated his support of the nominee had waivered after he probed Kirsch’s approach to statutory interpretation.

“I’m a little bit concerned about restricting yourself to the intent of the people or what we believe, or reconstruct, their intent to have been at the time that it was written,” Whitehouse said. “… When the Equal Protection Clause in 14th Amendment was adopted in 1868, I don’t think anybody who was involved in that expected it would require integrated schools … and, indeed, for nearly 100 years it was not seen that way until the Supreme Court decided in Brown v. Board of Education … that segregation in public schools was an offense to the Constitution as well as to our moral and civic fabric. So walk me through how you would get around the ‘at the time written’ problem?”

Kirsch replied that he would take the statute and apply the ordinary meaning of the text at the time the law was written.

Whitehouse repeated his question as to how the Equal Protection Clause written in the mid-19th century would apply to Brown, which was decided in the mid-20th century. When Kirsch said that as a judge his responsibility would be to apply Supreme Court precedent, Whitehouse pointed out the nine justices get cases only after they have been decided by the circuit courts.

“When you’re making a decision, I’m concerned that if you go back, particularly in statutory interpretation but also in constitutional interpretation, to try to divine the intent of the people who wrote it you would have ended up being a dissenting vote in Brown v. Board of Education and you’ve got to tell me that’s not so,” the senator said.

Kirsch responded, “I would not look at the intent of the people that wrote the language of the statute. I would look at the language of the statue and consider the language of the statute and what the words meant at the time they were written, not the intent of the legislatures that passed the law.”

The committee chair Sen. Lindsey Graham picked up on Whitehouse’s line of inquiry into originalism. He emphasized that as the issue of school segregation was being brought before the courts, a record was being developed which the Supreme Court used to determine separate did not mean equal.

Kirsch then used that line of reasoning when Sen. John Kennedy, R-Louisiana, returned to Brown.

Kennedy told Kirsch he was not trying to trick him but he wanted to get an idea of how the nominee thinks. The senator then asked if Kirsch thought that the average American would have read the Constitution at the time it was written as requiring that public schools be integrated.

After a 25-second pause, Kirsch replied, “I’d have to look into that issue.” He concluded that he does not think the public would have believed the 14th Amendment called for schools to be desegregated.

Kennedy again asked, “How do you go from most people wouldn’t read the Constitution at the time as requiring integrated public schools to Brown v. Board of Education? Analytically how do you get there?”

As the senator pressed the nominee on the Brown decision, Kirsch referred to the principles of the Equal Protection Clause.

“You must take the principles and apply them to the facts,” Kirsch said.

Kennedy countered, “So, you’re telling me that the principles change over time?

Kirsch responded, “No sir, I’m telling you the factual record developed in Brown demonstrated that separate schools were not equal and were not therefore consistent or compliant with the 14th Amendment Equal Protection Clause.”

The confirmation of Kirsch to the 7th Circuit may become a race against the clock.

Carl Tobias, professor at University of Richmond School of Law, said the judiciary committee likely will not reconvene to vote on Kirsch and the other judicial nominees until after the Thanksgiving holiday. The Democrats could introduce a procedural delay which would push any committee vote into mid-December.

If the committee approves Kirsch’s nomination, the Senate leadership would then be pressed for time. The confirmation would have to be introduced and be voted on by the full Senate before the 117th Congress is sworn in in Jan. 3, 2021.

Tobias said Kirsch’s appearance before the judiciary committee mirrored the many other nominees that have come before him during the Trump Administration. In particular, none of the appellate nominees have not been very forthcoming, and Kirsch followed that playbook.

“He just looked like he was coached,” Tobias said. “I didn’t think he was answering any of the questions and I thought they were legitimate questions.”

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