I appreciate the replies from Orin, Will, and Sam. We have very different conceptions on what role a scholar should play and what role a judge should play. My writings in this area are both retrospective and prospective. I look backwards to see what qualifications a judge had at the moment of their nomination. I also look backwards from the present, to the moment of their confirmation, to assess how those qualifications may have predicted their jurisprudence. I feel fairly confident with my retrospective criticism. A person's pre-confirmation record is their record, and it cannot be changed. And a Justice's decisions are available for all to read. I write more posts about Supreme Court decisions than I care to count.
I, admittedly, feel less confident when making predictions about a judge's future trajectory. My experience with a Supreme Court prediction market has given me some insight into the process, but the Justices continue to surprise me, and everyone else, in ways that are hard to fathom. What loop ties things together? Given a Justice's unpredictability after confirmation, it is of the utmost importance to carefully scrutinize all of a prospective justice's actions before the nomination, and try to extrapolate a trajectory.
And those observations bring me back to Justice Barrett. John McGinnis, for example, favorably compares Justice Barrett to Justice Scalia as a scholar-justice. It is true that they were both academics. But the similarities end there. Justice Scalia was the general counsel at the Office of Telecommunications Policy, chaired ACUS, headed the Office of Legal Counsel, argued before the Supreme Court, worked at AEI, a prominent think tank, spent four years on the D.C. Circuit, and was very much in the mix on all issues of public concern.
