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Bench Memos

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What’s Next II



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The syntax of Bradford Berenson’s post “What Next?” makes it hazardous to attribute any particular one of the views he recounts to him. So let me say that one of the positions Brad articulates is worth emphasizing. It is the curious situation–which happens to be ours–of having so many solidly conservative jurists who register high on the “identity politics” scale. Just start with women from Texas (Owen, Jones) and work from there until you get to Janice Rogers Brown in California. These possible nominees all have more overt philosophical commitments on the social issues than does John Roberts (which is not to say that Roberts won’t turn out to be as conservative as they; we’ll have to wait and see). And here I disagree with at least one voice in “What’s Next?”. The Roberts nomination represents an affirmation of genuine merit and quality, to be sure. But anyone can see its obvious political appeal, too, and it lies in his philosophical modesty. Roberts is and always was very, very confirmable.
And so we have this funny situation again: encouraging a Republican president to be politically brave precisely by nominating a Latino or a woman or a woman of color–so long as it one of the many who have demonstrated commitments on some (or all) the key social issues.

Whod’a thunk it.



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