Qualities of a Good Judge and the Upcoming Kavanaugh Hearings



HUGH HEWITT: Morning glory, America. It’s Hugh here from the relieffactor.com studios on the West Coast. I hope you’ve had a great week. It’s Friday. That music means it’s the last radio hour of the week, which we always give over to the Hillsdale Dialogues, where we go up to 30,000 feet, or look back 5,000 years, or something like that. We always go big, and without apology, we go high.

This week– not with Dr. Larry Arnn, the president of Hillsdale College, he’s off cruising with the Hillsdale College group– but with Professor Adam Carrington, who is a professor. He teaches constitutional history and constitutional law at Hillsdale. Professor, good morning. Good to have you on the program with us.

ADAM CARRINGTON: Great to be with you, too, Hugh.

HUGH HEWITT: All things Hillsdale are collected at Hillsdale.edu, and all things on the Hugh for Hillsdale Dialogues are at HughforHillsdale.com. How long have you been at Hillsdale, Professor Carrington?

ADAM CARRINGTON: I am about to start my fifth year, so I’m on the younger side of the faculty here, but very happy to have been here the years that I’ve been.

HUGH HEWITT: Now, tell us a little bit about your background. Where you did your undergraduate work?

ADAM CARRINGTON: Let’s see. I did my undergraduate at a small school in Ohio called Ashland University, although if anyone has heard of the John M. Ashbrook Center for Public Affairs, a great institution there, I was an Ashbrook scholar. And then I went on to do my graduate work, master’s and PhD, at Baylor University in Waco, Texas.

HUGH HEWITT: Well, I gave the commencement at Ashland last year, and I’ve known Ashland forever. I went to debate camp there long before you were a sparkle in your parents’ eyes back in the ’70s. I know Ashland very well, so it’s a great school. Baylor PhD.

So how did you pick constitutional history? Why did you want to do this? Not many non-lawyers like this field.

ADAM CARRINGTON: That’s true, and I actually went to graduate school wanting to just do more generically American political thought, and I was in a class with a good teacher down at Baylor named David Nichols. And he really showed that a lot of the great questions of American political thought– what is liberty? What is justice? What is equality? In addition to the great questions of structure, separation of powers in federalism really comes out in judicial decisions.

He actually compared them to dialogues like Plato’s Republic. And he wasn’t saying they’re as good as that, but he was saying that these are instances where a good majority and a good dissent really force out of each other a good conversation about the big principles and the big issues. And I really came to fall in love with the way the judges and lawyers are able to talk about justice and the law with each other in that kind of context, and it really took hold in grad school and has continued up to now.

HUGH HEWITT: And not just horizontally. I try to explain to my law students each year the conversation between majority and dissent is a horizontal conversation, but there’s a vertical conversation over the years as cases are revisited and turned over. Most recently, for example, in campaign finance we had McConnell versus FEC for a number of years, and then Citizens United came along.

So you had majority and dissent over many years in campaign finance finally resolving itself in the majority of Citizens United saying that money is speech, and that we have to get away from this. And corporations are not different from individuals, and you cannot benefit one set of corporations, like The New York Times, and not another, like the Koch brothers, but everybody has to have the same right. And that took a lot of conversational, a lot of dialectic both horizontally and vertically to get there.

ADAM CARRINGTON: Right, it means that words matter when you actually are trying to conduct politics like human beings and that when you’re trying to use the law like human beings. And therefore, why write a dissent? Why write even a concurrence? Because you are making an argument not just to your fellow colleagues, but to future generations that you thought you were just and that people will not just work by force. They’ll not just work by might. They’ll work by persuasion– and that we actually speak with each other, and that’s essential to what makes us political. And I think that the court at its best really does showcase that, and lawyers at their best really showcase that aspect of human politics that really goes all the way back to Aristotle.

HUGH HEWITT: It can also, though, go very, very badly. I’ve been listening to Battle Cry of Freedom, the James McPherson Pulitzer-Prize-winning 1989 history of the Civil War era. And I just got done listening to his recap of Dred Scottand how Taney really botched that case, and what a disaster it was that the court attempted to settle that which could not be settled. It attempted to undo the Missouri Compromise. It attempted to undo the 1820 compromise. It attempted to rewrite the history of the framing– indeed, the Jeffersonian theory in the Declaration of Independence, and it was a disaster. And sometimes you wonder if the court ever learned that it was a disaster, because Roe‘s a disaster, and I mean, lots of things are disasters over the years.

ADAM CARRINGTON: My father told me he had a history teacher in high school that said– and I don’t know where this teacher got it– man learns from history that man doesn’t learn from history.

HUGH HEWITT: That’s very good.

ADAM CARRINGTON: And I think that that is apropos. Not that the court never learns, but human nature stays the same, so we’re prone to make similar mistakes. And I think you’re right with Dred Scott that, in some ways, it’s tragic because I think Taney genuinely thought he and the court were the only ones in a position to fix this issue of slavery without war, and in many ways helped to bring on the war, helped to speed up, I think, its coming about.

And I think the other thing you point out is right that it was tragic for the power and the role of the court, because in many ways, Taney is just a really bad originalist. A lot of people bash originalism or textualism, these approaches today, by pointing to Dred Scott because Taney says, well, we just have to follow what the Founders thought, regardless of what we think. But I think if you look at Lincoln’s critique of that opinion, if you look at the dissents in that case’s critique of it, that just because you claim you’re doing originalism or textualism, doesn’t mean you’re doing it well and we should only judge it by it being done well, which means I think it’s bad to judge it by the way he did it, because there’s so much evidence to show that he was stretching what the Founders thought, or ignoring things with the Founders thought to try to get to the outcome that he was wanting.

HUGH HEWITT: And the war came. To quote Lincoln’s second inaugural after Dred Scott, and then the war came. But what’s interesting to me about that– the way it leads us into Kavanaugh is lack of judicial humility. And when you have lack of judicial humility, you have someone like Taney in the Scott case, which brings on the Civil War, going far beyond what he had to do. He could have just dismissed the case for lack of jurisdiction. That’s all he had to do, and I’ve taught– but instead, ambitious judges are a bane.

They want to do too much, and they’re not supposed to do that much. And I believe in Brett Kavanaugh we will have, as is the chief, a judicially modest judge. Talk to me about that a little bit, Adam Carrington.

ADAM CARRINGTON: Yes, and I think that that is a very good point, that you want judges, and really legislators, and executives to stay in their lanes. The Constitution creates three lanes, and they need to stay in the judicial one. And I think that not just Dred Scott, but much of the 20th century showed an inability of the courts or an unwillingness of the courts to do so. And I think with Kavanaugh, I think especially being raised in the legal tradition that he’s been raised in– he’s one of the justices– now he and Gorsuch– that have really truly been brought up in the conservative legal community in the shadow of Scalia, in the shadow of the Federalist Society. And I think this idea of the law really does point back to there are particular things judges can and should do.

They should not be political philosophers. They should not be legislators. They should be people who take the law as it is and applies it to particular cases and controversies. And I think you see in Kavanaugh in the way he operates someone who is willing to stay within those confines, and that means they’ll make some pretty big pronouncements. So those big pronouncements I think will be within the judicial power itself, and not try to cure all the social ills and slay every socially unjust monster, however real or perceived, that occurs in American society.

HUGH HEWITT: I’m talking with Professor Adam Carrington of Hillsdale College. It is the Hillsdale Dialogue. We do this once a week, and we’ve been spending a lot of time focused on the court because we are approaching one of the crucial moments in American constitutional history. And we’ll come back after the break and continue to talk about that because we’ve got to get set up for what’s going to happen to Kavanaugh in two weeks, so stay tuned. However, the President of the United States has tweeted.

“I did NOT know of the meeting with my son, Don jr. Sounds to me like someone is trying to make up stories in order to get himself out of an unrelated jam (Taxi cabs maybe?). He even retained Bill and Crooked Hillary’s lawyer. Gee, I wonder if they helped him make the choice!” [sic]

This is a diversion from the Supreme Court, Adam Carrington. The president will not let us stay on subject, will he?

ADAM CARRINGTON: No, he will not. Well, at least if the subject is not him.

HUGH HEWITT: We had all the build-up. We should be focused exclusively on Brett Kavanaugh because we are going into the hearings. When we come back, we’ll talk some more about that, because, indeed, Brett Kavanaugh’s wife is now a subject of The New York Times inquiry. It’s going to be that kind of a summer, America. Stay tuned, I’ll be right back with Adam Carrington as the Hillsdale Dialogue rolls along.

Welcome back, America. It’s Hugh Hewitt in the relieffactor.com West Coast studio. It is the Hillsdale Dialogue. Weekly we– once a week, the last radio hour of the week, I join with Dr. Larry Arnn or one of his colleagues– this week, Professor Adam Carrington of Hillsdale College– in a conversation about something big and important, not just the breaking news. This week, like last, we are focused, as we were last week with Professor Moreno, this week with Professor Carrington, on the looming debate over whether or not Brett Kavanaugh ought to take a seat next to eight other justices on the Supreme Court. Professor Carrington, what was your reaction to the nomination of Brett Kavanaugh?

ADAM CARRINGTON: Well, like you, I was a little bit of a homer for Kethledge, but that was more because being here in Michigan and him being the first Michigan appointee in, I think, it would have been 70, 80 years, would have been neat.

But I think it was an issue more of a question among betters. I think that Kavanaugh was, in many ways, even more qualified. He was a person who has had lots of judicial experience, whose approach to the bench in everything I’ve seen shows a great mind and a great approach to handling the text of the Constitution and the text of statutes. So even though being in Michigan I kind of liked Kethledge, I really thought that any of the ones that got to the last couple would have been good picks, and it really was just showing how strong the bench was that the president had to choose from.

HUGH HEWITT: Now the hearings will get underway, and they will have a million pages of documents. And my very cynical internal clock says it doesn’t make a lick of difference. Everyone has already decided whether they are going to vote for Kavanaugh or not. Do you agree with me?

ADAM CARRINGTON: I know Dr. Moreno said last week unless there is something we really don’t know about– and I think Kavanaugh in many ways is a very well-known entity– I don’t see that being the case. I see that there might be a lot of bark to opposition to him, but I just don’t see where there’s going to be any bite.

HUGH HEWITT: That’s my assessment, and when I read that The New York Times and others– and I’ve read this at Newsmax, which is fairly reliable on this stuff– is trying to FOIA Mrs. Kavanaugh’s public records as a town manager. That tells me that the 300 opinions he has written– by omission, the fact that they can’t attack a particular opinion or set of opinions tells me that they’re very good opinions. That’s my reasoning. And yours, Adam Carrington?

ADAM CARRINGTON: I think so, and I think that it also might just be that they’re asking what could really derail this among people who aren’t paying as much attention. And is there something salacious they could look up, since there obviously isn’t in these opinions? It really is something where even I’ve seen people who oppose him have had to admit that these are well-written. They’re well-reasoned. They’re well within how a judge should act and conduct himself before the law, so I think this is a bit of grasping at straws.

HUGH HEWITT: One of the first things I noticed is that they had gone to find his teacher evaluations, or teacher evals. I get these every year, and they’re on a bell curve. Some people love you. Some people don’t like you. Not surprisingly, they typically match the grade curve. In law school, there’s an obligatory grade curve because the ABA monitors these sorts of things. And the people who don’t do well don’t like the course, and the people who sail through do. But it told me, as well, as with the FOIA request on his wife, if they’re going to teacher evals, they’re really desperate, Adam.

ADAM CARRINGTON: Yes, and I would even say the information, the word that they asked to hear about his wife– when does the word conservative, or abortion, or gay, or federalist come up– shows the desperation, but I think it also maybe even shows a deeper question or a deeper issue, which is the question of partisanship and the law. I think that you see a lot of people who oppose– well, I should maybe start with a lot of people that support Kavanaugh saying we just want someone who’s going to apply the law as written and intended, and others opposing him saying, we want to know how he’s going to decide on abortion, on gay marriage, on guns, on these things. And in some ways, you could say that’s just partisanship, but I think that the divide is even deeper, that wanting to know this information shows in some ways that, I think, opponents of Kavanaugh really don’t believe there is a distinction between legislative and judicial power in the Constitution, that all judges do is impose their own views on the electorate at a different point than Congress does.

HUGH HEWITT: They do view that that way, and we’ll come back to discuss that. The Hillsdale Dialogue is underway, my guest, Adam Carrington, professor at Hillsdale College. We’re talking about the Kavanaugh hearings that loom. Stay tuned, the GDP number also will be along, and then we’ll bring it to you live on the Hugh Hewitt Show.

Welcome back, America. It’s Hugh Hewitt. Thank you for listening to Hugh Hewitt Show. The GDP number is in. 4.1% growth is back in America. 4.1% growth, very healthy. Happy to have that.

The Hillsdale Dialogue is underway. Once a week in the last radio hour of the week, I’m joined either by Dr. Larry Arnn, president of Hillsdale College, or one of his colleagues– today, Professor Adam Carrington– to talk about one of the big issues. And we have a Supreme Court vacancy, and there really is no bigger issue in the maintenance of constitutional freedom than the men and women who preside over the nine chairs– or sit in the nine chairs that preside over the evolution of the Constitution, or the interpretation of it.

Adam Carrington, let’s assume for a moment– I’ve got a new audience in Lafayette, for example. They’ve not heard any of the Hillsdale Dialogues dating back to 2013. They may not know that they can get Imprimis for free at Hillsdale.edu. They may not know that there are amazing free courses at Hillsdale.edu. And every conversation I’ve had with anyone from Hillsdale during this dialogue dating back to 2013 are all collected at HughforHillsdale.com all the way back to Homer, but let’s assume that they don’t know much about the Supreme Court. Give them a little primer, would you, on what Article III was intended to accomplish, and what Hamilton 78 tells us about it?

ADAM CARRINGTON: Right, and I think that’s obviously a great place to start with the Constitution. And I think a thing to keep in mind is that the first three articles of the Constitution don’t begin by creating a branch. They begin by asserting a distinct power. They begin by saying the legislative power is given. The executive power is given. The judicial power is given, saying that these are different from each other, and then create a branch meant to fulfill that power in the best way it can.

And I think Article III says that the particular judicial power is vested in a Supreme Court and lower courts created by Congress. And I think a thing to keep in mind with understanding how is that power distinct is to go to Federalist 78, which I do think Marbury v. Madison in some ways mimics on certain things. But in Federalist 78, Hamilton really says that the role of a court is to take a law that already exists and to deal with a problem in the law. And that problem in the law is people don’t always agree on how it should apply to a particular circumstance. Was this really fraud? Was this really breaking a contract or not, for example?

And what the courts do is, when there’s a dispute over how the law should rule us, whether it’s the Constitution or statute, the courts say what the law is in that instance by applying it and saying, this person has the better reading of the law than this other person. And I think Federalist 78 says that, in doing so, what the judges are doing is they’re not asserting their will. That’s what the legislative branch does. They assert their will by creating laws. They practice what’s called merely judgment. They take the existing law and apply it to a particular dispute, not using what they wish would happen, but trying to say how the law should govern us in that particular instance.

HUGH HEWITT: And this is the practice that has evolved over time since 1789– slowly at first, gathering acceleration as the years went by, and the decades went by, and the doctrine of incorporation developed after the Civil War amendments. It has accelerated to now the court is ubiquitous in our lives, and there’s an almost dramatic element of building to the end of June that is not what the Framers had in mind, but it is now an inevitable part, and judges have become much more public, much more personalities in our lives. And when we look back and talk about great justices, we now have to measure those who are coming. And this is relatively new, to make judges into celebrities.

When Justice Scalia– with Judge Scalia, I did some cases for him when I clerked in the D.C. circuit and my judge was ill. And I got cases from then Judge Ginsburg, and then Judge Bork, and then Judge Scalia, and Judge Starr… Nobody knew who they were. They were just anonymous judges, and it was a good thing for a law student to get a clerkship. It would help with your career, but you did your work, and you never thought you were working for a superstar. That’s all changed now.

ADAM CARRINGTON: Yes, the fact that there is a movie about Ruth Bader Ginsburg– not just the documentary, but a drama film coming out later this year– is pretty unheard of. I think there was one about Oliver Wendell Holmes 50, 60, 70 years ago, and the thought that they would become pop culture icons is quite strange.

And I think that’s really two things happening at the same time. One is, in the judiciary itself, how much we have reduced all of our debates to constitutional questions. Everything that people oppose now must be unconstitutional. Scalia had a stamp, allegedly, that he wanted to stamp on things that said stupid, but constitutional. We don’t have that belief anymore, and I think what that’s done is that’s only encouraged judges themselves to expand what they think their power is by declaring anything they don’t like unconstitutional, anything they like constitutional.

I would say the other bigger thing is how just politicized everything is. Why are judges celebrities? Because politics has become so essential to so many people. And of course, it’s important that we be citizens, but it’s become everything to some people. And therefore, I think that the role of politics, not just the judiciary in our lives, has maybe taken an outsized element. And we’ve forgotten that, as human beings, big parts of ourselves are being parts of families, churches, bowling leagues, and things like that.

HUGH HEWITT: Let’s take a look at some of the judges come before. This was suggested by our friends at Hillsdale that there are hall of fames among justices and hall of shames. We talked about Taney, and I remember a great Scalia dissent in which he reflects upon the portrait of Taney at Harvard Law and how grim he looks, how he knows in this portrait that he has sent the union off to war in many respects, and to a terrible conflict– 600,000 dead.

But we do have these judges, and there are a couple hundred– maybe not a couple of hundred. I don’t know how many. Maybe 150. Who do you think are the models that we ought to hold up, and who do we think ought never to be what we look for in a judge?

ADAM CARRINGTON: That’s a great question, because even if we don’t want to make them icons, we should seek to learn from history like we talked about before. And I think a good place to start is with John Marshall, the first great Chief Justice, who, while not perfect, I think in many ways established a number of important points– that we should look to the text, that we should look to what the original Framers meant in that text, and that we should understand that there are great principles of justice underlying that text, and that he was a great and lively writer, which we often don’t have on the bench, in expositing these principles and making this approach.

I think Joseph Story is another great early justice. I’m partial to a man named Justice Stephen Field that I wrote my dissertation and a book on–

HUGH HEWITT: Oh, did you really?

ADAM CARRINGTON: On the Reconstruction era. Yeah, that came out about a year ago, if I can put a plug in.

HUGH HEWITT: What’s the name of it?

ADAM CARRINGTON: It’s Justice Stephen Field’s Cooperative Constitution of Liberty— how the Constitution cooperated in propelling government to regulate, to protect rights, but also limiting government to keep it from violating rights, and how that was a fuller view of liberty than those who are purely anti or pro-government in regulatory instances. So I think he was a fine justice. I think that Scalia certainly– and I think the thing with Scalia is how he brought back the text and the original meaning when before that wasn’t the case.

Some of the hall of shame– I do think Taney should be in there. This is much more controversial, but I think, even if you agree with some of the outcomes, some of the mid to later 20th century justices, like Earl Warren and Brennan– even if you agree with their outcomes, some of their approaches to the Constitution, to how to get there, I think were very problematic for the role of judges staying within their lanes as we were talking about before.

HUGH HEWITT: Well, I will agree with you on the Warren court when it comes to, example, of school prayer and the Establishment Clause distortion that they came up with. However, had they not brought the hammer, segregation would never have been shattered. I don’t think we would have gotten the 1964 Civil Rights Act, which was the essential remedying of the perversion of the 14th Amendment.

The 14th Amendment ought to have made segregation unconstitutional. It didn’t because of bad Supreme Court decisions in Plessy versus Ferguson, and so that had to be shattered, and Warren and Brennan went about the shattering. That is to their everlasting credit.

ADAM CARRINGTON: I agree, and that’s partly why I said the outcome– you can sometimes agree with the outcome and maybe not how they got there. I really wish that the Warren court had picked up Justice John Marshall Harlan’s dissent with Plessy and leaned harder on it, because I think it was the right outcome, but the way they based it they really dismissed the text of the Constitution very quickly. They sort of rolled over it and moved to psychological studies to support the downfall of segregation. And I really think that that’s not as strong a footing as it could have been.

So I absolutely agree with the outcome. I really wish that they had taken the Plessy v. Ferguson dissent that the Constitution is colorblind, that there is a right to liberty involved in the government not treating people differently on an arbitrary issue like the color of one’s skin, and that that would have even been a stronger ground to strike at the heart of segregation. In fact, I think it would have struck harder at the heart of segregation than even the reasoning that they used.

HUGH HEWITT: We’re going to get there, by the way, in this next court with Justice Kavanaugh. We will end, finally, the use of racial discrimination in the awarding of benefits or the imposition of penalties, because we will have five justices who are– it will be our 114th justice, by the way. 114 men and women have served in that job prior to this, and I’ve got to say right before we got to break, Adam Carrington, I think the chief is going to be a great Chief Justice in history, and on the terms of John Marshall, because he’s going to be there that long. He has already written things like the concurrence in Citizens United.

And I believe Sebelius is going to be viewed as a Marbury v. Madison like elegant threading of a needle between institutional preservation and the accomplishment of great constitutional goals like the Spending Clause, the Interstate Commerce Clause, but conservatives hate him because of the outcome. But I just thought it was so elegant. He’s a friend. 30 seconds to you on that.

ADAM CARRINGTON: Wow, I do think in general he has been a very good Chief Justice. I’m not sure if he wasn’t a little too clever by half. History, I guess, will have to judge on the Sebelius decision, because I think he tried to rewrite the statute. That’s the thing I just don’t buy on that.

HUGH HEWITT: OK, we’ll come back after the break, and during the break, think about this. You’re supposed to uphold every statute that you can. You know that– judicial modesty– but I want everyone to stay tuned. We’ll come back with Adam Carrington in a moment.

Welcome back, America. I’m Hugh Hewitt. The Hillsdale Dialogue is underway. Hillsdale.edu for all things Hillsdale. All of our conversations dating back to 2013 are collected at HughforHillsdale.com Professor Adam Carrington, who teaches the history of the Constitution and constitutional law at Hillsdale is my guest today.

I want to finish by talking about Brett Kavanaugh and the kind of things you think he will face, Professor Carrington, and the kind of conversations you hope to hear. I always have high hopes for these, because the American people can learn so much from these conversations, but they end up inevitably being– Al Franken made a fool out of himself with Neil Gorsuch, and I have no doubt that some of the Democrats will make fools out of themselves again, but it will be the job of Brett Kavanaugh not to point that out.

ADAM CARRINGTON: Right, and I think that the questions that are pertinent really stem from some of the conversations we’ve already had this hour. I would really base any good question off one. What is the judicial power? What do you understand it to be? What makes a good judge? And to then even your questions about approaches to particular lines of constitutional law, particular lines of procedure.

I think all of that should just come out of what makes a good judge, and what makes a good judge is who follows the judicial power correctly, but you’re right. There will be lots of, are you going to rule the way I would vote if I were voting for a bill in the Senate? Are you going to– this embarrassing thing that we tried to dig up about your past drinking habits in college that I know that’s come out– that’s where I think it’s going to really run off the rails, and not be the kind of conversation that we should be having, and not show proper respect for the Senate as an institution or the court as an institution, which both should be respected deeply in this process.

HUGH HEWITT: Now, what I’d love to get you to comment on is whether or not in the course of this he ought to be taking particular issues like Roe v. Wade and talking about their jurisprudential history, or whether he ought to leave them completely alone, because I think you can do the former without doing the complete dodge and provide some answers and some temperament issues, but on the other hand, the safest bet is to pull the Ruth Bader Ginsburg precedent out and say I don’t discuss anything that might come before the court. What’s your advice?

ADAM CARRINGTON: Politically, I would say keep it as close to the vest as possible, but where possible, I think he should be at least willing to engage in constitutional reasoning and talking about what lines of thinking are most closely related to the original Constitution and to the text itself, but I also think he really does genuinely need to make sure he doesn’t say exactly how he would decide a case that hasn’t come up yet.

But the fact is, I think I’ve seen judges do it well. I’ve seen Scalia and others make speeches while Supreme Court justices that I think were able to toe that line, so I hope it’s an engaging conversation. At the same time, I would err on the side of caution, not because that’s what should be done in a perfect world, but probably what needs to be done in this world.

HUGH HEWITT: If you were a senator, what would you ask him?

ADAM CARRINGTON: I would ask him how he would explain to a fellow citizen Article III of the Constitution’s vesting of the judicial power.

HUGH HEWITT: Well, that is excellent. Oh, that is excellent, because that would engage him in kind of first principles of judicial theory, and to do so– I always make my students explain it like you were explaining it to a smart seventh grader, because the Constitution is intended to be read by farmers, and by artisans, and by people at the framing gathered in ratification conventions who were not constitutional scholars. They were supposed be able to read and debate this thing.

ADAM CARRINGTON: This is a government of the people, by the people, for the people. Its fundamental document should be understandable by the people, and I think whatever Kavanaugh says in relation to that question would then define the lines of questioning I want to go from there.

HUGH HEWITT: Now, given that you wrote about Justice Field, and given that’s 100 years ago– I guess he was working 100 years ago. Maybe not quite that. About 120 years ago. Do you think it’s fair to ask people like Brad Kavanaugh, so what do you think of Justice Stephen Field? Is that a fair question? They don’t murder board that kind of stuff.

ADAM CARRINGTON: I think it’s perfectly legitimate to ask what he thinks of past justices, and that might be a way for him to not explicitly say how he’d decide a case, but actually see whose reasoning he respects and what precedent he respects in the past.

HUGH HEWITT: I’ve been reading Field during the break, because I don’t know much about Justice Field other than he’s a slaughterhouse guy. And it turns out he’s a Lincoln appointee and a Californian. Is that why you picked him?

ADAM CARRINGTON: Well, and a Union Democrat in addition. No, I picked him because I thought he was particularly clear, thoughtful. He integrated first principles of the Declaration of Independence without leaving aside the text itself of the Constitution, and that he had something to say to our contemporary politics on the meaning of liberty.

HUGH HEWITT: What is the title of the book, again, Adam Carrington?

ADAM CARRINGTON: It is Justice Stephen Field’s Cooperative Constitution of LibertyLiberty in Full is what I subtitled it.

HUGH HEWITT: Liberty in Full, how interesting. I’ve just pulled it up on Amazon. I’m about to tweet it out. I appreciate your joining me this morning, Professor Carrington. Come back again.

All the Hillsdale Dialogues are collected at HughforHillsdale.com. Go there. Go to Hillsdale.edu.

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