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Bench Memos

NRO’s home for judicial news and analysis.

Getting to Know Her



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Mark Levin says that since my desire for “in-depth substantive questioning” will not be satisfied, probably not in the questions senators ask and certainly not in the answers nominees give, my position is merely “academic.” As an academic I have that one coming. But I will remind Mark that a great many things once thought merely “academic” have come to pass, for good or ill, in what is quaintly known as the “real world”: the revival of federalism on the Supreme Court, the right to obtain abortions, the elimination of sodomy statutes and the now-looming nationalization of gay marriage.

It is true that these things happened in the courts, which are probably the institutions most susceptible to persuasion by what academics have to say. But I would like to think that the other branches of government are not entirely immune to the force of fresh thinking about old subjects. Obstinate outsiders who are persistent enough sometimes change the minds of those in power. Why not begin with Republican senators?

If I were a senator, would I vote against a nominee who was insufficiently forthcoming in answering highly pointed questions about past rulings of the Court? Depends on the circumstances, but probably I would, just to make the point. I might even have voted against Chief Justice Roberts on those grounds. He was just doing what any smart person in his position would have done, especially when encouraged to do it by such GOP defenders as Sen. Cornyn. But my overall sense of him was that he was impressively unimpressive. I look forward to improving my opinion of him now that he’s chief.

As for Harriet Miers, I want to get to know her mind (not her feelings, Sen. Feinstein!). I have no reason right now even to agree entirely with the NRO editorial posted a little while ago. I just don’t know enough about her. She could turn out to be a truly impressive jurist. Maybe the president has good reason to be sure she will be. But I know of only one way to find out if that’s a fair guess, and that is to ask her some tough questions and weigh the quality of her answers.

Given Mark’s reply earlier to Rick Garnett, I invite him to join me where the logic of his own argument points–advocating a real brawl in the Judiciary Committee. With Levin on my side, I’m sure my view won’t be considered “academic” for much longer!



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