Disgraced CNN legal contributor Jeffrey Toobin wrote an opinion article on Tuesday that complained Republicans are winning the “ideological war” at Ketanji Brown Jackson’s Supreme Court confirmation hearing.
Toobin, who was caught masturbating on a Zoom call with former colleagues at the New Yorker but returned to CNN after seven months, penned an op-ed noting Democrats are allowing Republicans to win the debate over how the constitution should be read. “Conservatives Are Winning the Ideological War at Jackson’s Hearing,” the headline read.
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For background, most on the left believe the Constitution is a “living” document and should be interpreted based on changing social conditions. On the other hand, most Republicans believe the constitution should be read based on its original intended meaning. This approach is called “originalism.”
In his op-ed, Toobin wrote that Jackson had answered many questions in line with originalism, though it should be noted her nomination by President Joe Biden would seem to indicate that Jackson is not an originalist. Nevertheless, Toobin whined Republicans are winning the “ideological war”:
Jackson presented herself as an originalist. She said, in response to a question from Republican Sen. Mike Lee of Utah, she believes as a judge, you “are bound by the text and what it meant to those who drafted it.” That’s right out of the originalist playbook.
Though Toobin acknowledged conservatives are winning the old debate, Toobin took the Democrat’s position and gave his own far-left opinion. Toobin claimed that its “debatable” whether the Constitution should be read according to its original intent, noting the framer’s intent of the document might be disqualified because it’s not relevant to current events:
It’s highly debatable whether we as a society should be bound not just by words written hundreds of years ago, but by the world views of the people who wrote those words. The world has changed in untold numbers of ways; so, then, should our understanding of the Constitution.
Tobin’s opinion is opposed by many legal scholars, such as Supreme Court Justice Clarence Thomas. “Words have meaning at the time they are written. When we read something that someone else has written, we give the words and phrases used by that person natural meaning in context,” Justice Thomas explained in 2019.
Despite Justice Thomas’s reasoned opinion, Tobin’s op-ed contradicted Justice Thomas by claiming with “words” that “have meaning” the “[t]he Constitution will always be a living document, whether we acknowledge it or not.”
“But conservatives have won a major victory in making it difficult to say so,” he added.
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