Bench Memos

NRO’s home for judicial news and analysis.

Re: Making the Cases


I appreciate Gerry’s response, especially the part where he agrees with me. But Gerry also writes, in part:

“Roberts is asked a question which he refuses to answer, and explains why he must refuse to answer it. His explanation goes beyond the grounds for refusing which I (among others on NRO) have criticized as being inadequately justified: a literal reading (if that) of canons of judicial ethics, notions that a prospective justice should say nothing that implies his stance in a pending or future case, etc. This broader explanation is, in fact, an adequate response to the question posed. If plausible (and more so if convincing), Roberts’s response, while not the type of “answer” the Senator sought, would be a bad basis on which to oppose him.”
I think this response demonstrates the problem with demanding answers to certain questions we’ve debated at length here. While I don’t expect Gerry or anyone else to present several examples of the kind of non-specific responses that would be acceptable, how about one, two, or three such examples? And once we get those examples, we can examine them. But this still doesn’t respond to my question: if Roberts used the cannon of judicial ethics or impartiality as bases for refusing numerous Schumer-like questions, as I expect he will, would Gerry et al. continue to support his nomination or not?

I understand Schumer and Boxer’s point, which is, as Richard Epstein argues, to create a circus atmosphere at the hearings in hopes of embarrassing Roberts. But that’s not satisfactory for us. It seems to me that asking Roberts questions that we know (generally) he won’t answer–because of the cannons of judicial ethics and concern for impartiality–is folly.


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