Bench Memos

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More About Making Cases


Here is a quick preliminary response to Mark Levin’s main challenge to those (such as myself) who call for broad questioning of a judicial nominee. The example at hand happens to be John Roberts. But Mark’s question transcends Roberts. Mark’s question has to do with what is generally permitted (under relevant judicial codes of conduct) and what is generally the responsibility of senators charged by the Constitution with a grave responsibility: “advice and consent” to lifetime appointments to the federal bench. He asks specifically what I would do if Roberts refused to answer a bunch of questions. I do not know what I would do. But I can say a bit about what I think a senator’s responsibilities are.

1. I have said before that if the relevant rules governing judges are as clear and as clearly applicable as (I think) Mark supposes they are–and if they clearly mean for someone in Roberts’ position to decline to answer–then Roberts should decline to answer.

2. I doubt very much they are so clear, though I have yet to study them with care.

3. If I were a senator I would refuse to consent to any nominee about whom I could not learn enough to conscientiously discharge my constitutional responsibility. If the reason is a nominee’s interpretation of prevailing judicial ethics, so be it: I still cannot consent. My responsibility as a senator is to follow the Constitution, and what I honestly believes it requires of me. It binds me at least as much as we are supposing prevailing judicial canons bind the nominee. And the Constitution is the supreme law.

4. If I were a senator I would judge that “name, rank, and serial number”
were not nearly enough for me to judge a nominee’s fitness, and so I would not consent to the appointment of such a nominee. A nominee’s training, character, competence, and commitment to honestly doing the job are necessary but not sufficient to garner the consent of at least this (hypothetical) senator. In other words, I do not think that the Constitution requires me to sign off on any competent lawyer who has good character. Not nearly.

5. In fact, the Constitution I swore to protect and defend when I took office has, in my conscientious judgment, some pretty definite things to say about some important matters. Let me be specific about the three leading issues in what some call today’s “culture war”: secularism, abortion, same-sex marriage. The first two have been imposed upon the people by the Supreme Court. These impositions have been grotesques distortions of the Constitution. The third is in the offing. Lawrence v. Texas signals that. If the Supreme Court imposes same-sex marriage upon the people, it too would be a grotesques distortion of the Constitution.

6. On the first two matters the Supreme Court has greatly harmed the common good of our society. On the third, they are poised to do the same.

Believing the foregoing to be true, I wonder just how it is that I–as a senator–would be living up to my responsibilities to the Constitution and to the people were I to say: “Mr. Nominee, you have told us nothing definite about what you think the Constitution says about secularism, abortion, same-sex marriage. At least, I do not know where you stand. Very well. I consent to your lifetime appointment to the Supreme Court. I pray you do the right thing there.”


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