Bench Memos

NRO’s home for judicial news and analysis.

Making the Cases


Mark Levin’s most recent post (Making the Case) repays careful re-reading.

In the first paragraph he makes the point that, if Senators may legitimately ask about all sorts of things, then they might well be justified in opposing Roberts should he refuse to answer. He suggests that there is a tight symmetry between what they may ask and what he must answer. I don’t think it works quite that way. Mark’s suggestion deserves a fuller response than I can now give, but one possibility that Mark seems not to contemplate is this: 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.

Mark’s second paragraph is right on. Roberts is the nominee, and he will be confirmed. But there is a growing list of reasons why the president’s choice of him now–instead of a Mike Luttig or an Edith Jones or an Emilio Garza –may backfire on conservatives next trip down the advise-and-consent trail. Mark is right, too, that much of what is being said in defense of Roberts also may come back later to haunt conservatives. One way to make the best of it now is to make two (or more) cases–not one. Conservatives should think and write and act as if Luttig or Jones or Garza is before the Senat–as if there were two nominees. Defend Roberts, to be sure, but do so on grounds (insofar as the grounds go beyond the particulars of Roberts’ biography) that imply nothingnegative about the other nominee–Garza, Jones, Luttig–who
we have imaginatively put before the Senate.


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