Georgia Appellate Judge Lisa Branch Questioned Over 'Originalist' Judicial Philosophy

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Judge Lisa Branch, Georgia Court of Appeals[/caption] It was a heady day Wednesday for Georgia Court of Appeals Judge Elizabeth “Lisa” Branch. In more ways than one. Introduced to the U.S. Senate Judiciary Committee by Georgia’s U.S. Sens. Johnny Isakson and David Perdue, Branch—who has served on the state appellate bench for five years—testified at her confirmation hearing for an open slot on the U.S. Court of Appeals for the Eleventh Circuit that has been held for two decades by Georgia’s Frank Hull. She also fielded multiple questions seeking the extent of her embrace of constitutional originalism and textualism and how that judicial philosophy might shape her rulings as a federal appellate judge. Branch, whom President Donald Trump nominated to the Eleventh Circuit last September, agreed that her judicial record reflected her originalist bent. But she also attempted to assure Democratic committee members, who expressed skepticism that the philosophy was too narrow or overly simplistic, “At the end of the day, I am bound by U.S. Supreme Court precedent.” Originalists generally regard the U.S. Constitution as having a fixed meaning reflected in its text, its structure, and the intent of the nation’s founders that does not evolve over time. Citing the late Supreme Court justice and ardent originalist Antonin Scalia and newly-minted Justice Neil Gorsuch, Branch said that, in following the rule of law, “A judge is going to render decisions that sometimes the judge is pleased with and sometimes is not so pleased with.” Once that ceases to be the case, she added, “Perhaps it’s time to find another job. Or retire.” Responding to a question from Sen. John Cornyn, R-Texas, who sought her agreement with his disdain for a “a living Constitution,” Branch suggested the term implied an effort to “adapt the Constitution and read in words that weren’t written.” She added, “That may be how some people use that term. I don’t tend to use those words.” She did, however, agree with Cornyn when he contended, “The role of a judge is not to usurp the role of the Legislature and come up with a result they deem just under the circumstances that does not maintain fidelity to the [constitutional] text.” Said Branch: “With respect to the separation of powers, sometimes there are situations where I wish a statute were worded differently. But I can’t do anything about it. It’s not my job.” In some cases, she continued, “I have pointed out to the Georgia General Assembly … that if they want to fix it, that is their job to do so.” Cornyn’s queries clearly troubled Sen. Dick Durbin, D-Illinois, who pressed Branch about her originalist philosophy as it applied to personal privacy rights, a term he noted did not appear in the U.S. Constitution. Citing Griswold v. Connecticut, a 50-year-old U.S. Supreme Court contraceptives case that the high court’s privacy holding was “a departure” from originalism. Branch sidestepped the question, saying it was not appropriate to express her personal opinion of the case. Durbin persisted. “You know what I’m talking about,” he said. “I’m talking about the rights of women which were not very well respected in the original Constitution. I’m talking about issues like race and equality in America that, again, were not reflected well.” Branch, in reply, suggested that the U.S. Supreme Court has flexibility in interpreting the Constitution that, as a lower court judge, she does not have. [caption id="attachment_4933" align="alignleft" width="620"]

Judge Elizabeth Branch, Georgia Court of Appeals[/caption] Branch said she intends to abide by “what the drafters [of the U.S. Constitution] meant when the words were drafted.” “At the time the Constitution was drafted and ratified, there were a lot of historical source materials,” she said. "We are not writing on a blank slate. We can actually go back and see the notes and see what the founders meant and intended.” “If there is some concern as to what the words meant at the time, I think, in that case, historical materials might shed some light,” she added. Branch wasn’t the only Georgian to appear before the Senate Judiciary Committee Wednesday. So did U.S. Magistrate Judge Stan Baker, nominated for a vacant post in the Southern District of Georgia. At the hearing along with several other more controversial candidates for the federal bench, Baker fielded a single question from Chairman Charles Grassley, R-Iowa, who asked what he had learned as a magistrate judge. “Just how hard the job of a judge can be,” Baker replied. “There is nothing I have done professionally that approaches the work of sitting on that bench in that courtroom and listening to lawyers advocate on behalf of their clients and then rendering a decision based on the law.”