Bench Memos

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Durbin’s Round 2


Back where we started the day.

2 issues:

1. Unitary executive. D discusses Hamdi. A: Unitary-executive has nothing to do with issue in Hamdi. (This should be evident from dramatically different positions of Scalia, who took position on scope of executive power that was more restrictive than O’Connor’s, and Thomas in that case.)

2. Establishment Clause. Asks “your feelings about religion”. (Why do Dems ask so much about “feelings” rather than “thoughts”? Because they feel more than think?)

D: Which test do you adopt?

A: Court has not settled on any test. I don’t have a grand unified theory. As judge, I’ve followed Supreme Court precedents.

D: What role would your personal moral and religious beliefs play?

A: Important to my private life. My obligation as a judge is to apply the law, not my personal moral or religious beliefs. Nothing about my beliefs would interfere with that.

D: Agree. Same challenge we legislators face. (Wrong!!! Legislators make policy, properly consult own values in doing so. Durbin is trying to get cover for professing to be Catholic while being rabidly pro-abortion.)

Discussion of cases presenting question of government-sponsored religious speech vs. private religious speech.

D: What didn’t you like about Warren Court decisions on Establishment Clause?

A: Law-school note discussed conflicting cases on government support for secular subjects in religious schools.


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