The phrase made headlines, as if she had said something profound. In fact, it is a legal cliché, a go-to judicial confirmation phrase.
In an interview with C-SPAN in May, President Barack Obama said, “I want somebody who, obviously, has a clear sense of our Constitution and its history and is committed to fidelity to the law.”
In 2005, then-President George W. Bush, in advocating for the confirmation of Chief Justice John Roberts, said, “The Senate is well along in the process of considering Judge Roberts’s qualifications. They know his record and his fidelity to the law.”
What does “fidelity to the law” mean?
“It can mean anything you want it to mean,” says Anita Allen, a deputy dean at the University of Pennsylvania Law School. “If you are a staunch conservative, it appeals to you because it sounds like you are not a political person, not an activist, somebody who uses the law to guide you. But if you are a liberal activist, you can also subscribe to this attractive notion because it can mean following the spirit of law.”
The phrase was popularized by the legal philosopher Ronald Dworkin, who penned a 1997 article in the Fordham Law Review titled “The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe and Nerve.”
“The phrase means nothing, because there are so many contesting views about how to discover what the law is that ‘fidelity to law’ means fidelity to your own conception of law,” Dworkin tells POLITICO. “The phrase is useful for nominees, because they are not then asked the jurisprudential question: Well, what is your conception? What does ‘fidelity’ mean in interpreting the very abstract clauses of the Constitution? Does it mean originalism? Making the Constitution the best it can be? What else might it mean?”