Bench Memos

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Specter story: can’t be true


At first, I thought this morning that someone had put something hallucinogenic into my cornflakes.    The lead story in this morning’s Politico , falls into the “this is so crazy they must be making it up” category.  Except that the reporter, Carrie Budoff, is by all accounts a first-rate journalist in terms of fairness, accuracy, and ethics.    Senator Specter allegedly told Budoff yesterday that he “personally” plans to “review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel J. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators in order to win confirmation.”    This idea was planted in Senator Specter’s mind, the story goes, by Justice Stephen Breyer, whom Specter “ran into” at the “Aspen Ideas Festival in Colorado.”  This one must have come up at the “Wacky Ideas” seminar.  Justice Breyer apparently drew Senator Specter’s attention to some 8 cases in the term just ended that overturned or weakened Court precedents.   Duke law professor Erwin Chemerinsky weighed in for the Politico story, saying “The reality is, although John Roberts and Samuel Alito promised to follow precedent, they either explicitly or implicitly overruled precedent. . . . It is important to point out how the confirmation hearings were a sham.”   After digesting this story, along with my cornflakes, for a few hours, I conclude the following:   1.  Duke needs to re-examine its hiring practices for its law faculty, or consider terminating someone as innocent of the law and the workings of our constitutional government as Erwin Chemerinsky.    Memo to Erwin:  the Chief Justice and Justice Alito did not, at their confirmation hearings, “promise[ ] to follow precedent.”  They testified under oath that stare decisis is an important consideration in deciding any case where the Court’s own precedents come into play.  That is all.  The most important precedent is the Constitution itself, and they not only testified that they would uphold that, they later took an oath to do so.  They took no oath to adhere to prior erroneous decisions of the Court that violate the Constitution.  And a Senate Judiciary Committee hearing that does not extract promises from Supeme Court nominees to adhere to your own policy preferences and those of your fellow wild-eyed liberal crazies is not a “sham.”  Senator Specter ran those hearings fairly, and the nominees testified truthfully.  To think that nominees can make promises of what they will later do on the Court is so naive it is absurd;  it would so clearly violate the separation of powers and judicial independence that it is amazing you can retain your faculty position while making such absurd claims.  Consult Ruth Bader Ginsburg’s testimony on this point, if you doubt this.       2.  Carrie Budoff, the reporter, while a good journalist, is not an attorney.  Her biography at Politico says she briefly flirted with pursuing a legal career in high school, but abandoned it and pursued journalism.  That’s fine, and she can certainly report on legal stories, but we can’t expect her to know that a law professor at a leading American University is pulling the wool over her eyes about the Senate confirmation process and stare decisis.   3.  Senator Specter may, because he’s a legal geek, enjoy reading this term’s decisions and reflecting on how stare decisis was weighed — many times differently by the very two Justices at issue here, as well as their colleagues who practice judicial restraint, Justice Scalia and Justice Thomas.  I am 1000 percent confident that, if he does, he will come away from that reading with even greater confidence in Chief Justice Roberts and Justice Alito’s intellect, honesty, and faithfulness to the Constitution and proper regard for precedent.  He will also come away from the reading very pleased with the hearings that he chaired that put these two Justices on the bench.   4.  I hope that this will be the first, last, and only time in the history of the Republic that a Supreme Court Justice has tried (and failed) to sic a Senator on the Chief Justice and another fellow Justice.   


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