The Quiet Parts Loud
It looks like Amy Coney Barrett is off the shortlist, as Mitch McConnell’s comments indicated. There are presumably multiple reasons she was eliminated — I’ve heard rumblings that the interview with Trump went badly. But I suspect one important reason was this law review article she co-authored:
You will not be surprised that the article does not reach a satisfying conclusion to this question.
Anyway, if I were Leonard Leo this would be reason not to nominate her with one vote to spare. It’s a Kinsleyian gaffe, in this sense that in fact no “originalism” with any meaningful content can lead you to the conclusion that Brown was decided correctly. But at a high-profile confirmation hearing, the play is to say “of course originalism produces the correct result in every case, past and present,” not “Brown is wrong under originalism, but we shouldn’t be originalist in that case, but still originalism is awesome.” It’s not a question you want to be answering again and again. I mean, anyone who’s made it to Leo’s list of potential nominees will cast basically the same votes. So as Remo Gaggi says, why take a chance? At least how that’s I would feel about it.