Bench Memos

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Answering the Questions


First, we know Roberts won’t answer all the Schumer-like questions asked him because no nominee has or would (Bork went further than any, but I doubt he would have taken all of Schumer’s bait). And Roberts’s advisors are repeatedly asserting the Ginsburg Rule, which I reject, as it is not a rule at all but a weak precedent for avoiding most questions put to the nominee.

I think Ramesh’s view will predominate as a practical matter among conservative (and most Republican) senators who seek specific answers about specific cases. They will vote for Roberts short of some debacle, and regardless of his unwillingness to answer a laundry-list of questions. So, I’m not sure what these senators seek to accomplish with a line of questioning that will prove unhelpful in discerning Roberts’s judicial philosophy.

Gerry’s position is certainly very logical, but I believe if he were a senator he would find himself voting against virtually every nominee, perhaps even a Michael Luttig if Luttig refused to answer Schumer-like questions. Gerry is extremely persuasive in setting forth the role of a senator, but the role of a nominee (especially a sitting federal judge) would, I believe, frequently conflict with his demands.

But this does go to my earlier (second) point, with which we agree (and I am not the only one to voice it), i.e., that the tactic of Republican presidents nominating individuals to the Supreme Court with thin records–which is, I believe, Gerry’s primary concern–should be denounced. It may well deny political opponents opportunities to attack a nominee, but it also denies the rest of us some certainty about a nominee’s judicial philosophy as well. It’s a big risk and one that, in the end, usually benefits the anti-constitutionalists.

Thanks for engaging.


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