Bench Memos

NRO’s home for judicial news and analysis.

Making the Case


Schumer, Specter, and now Boxer, who takes her demand for answers a step further. If Roberts refuses to answer questions of the laundry-list sort Boxer will ask (and some here have endorsed), should he be filibustered or otherwise defeated? It seems a logical response to those who insist on such a process. If there’s no prohibition to answering the questions, as the argument goes, then failing to answer would seem an obstruction of the Senate’s role, no? I also believe Boxer’s reaction underscores Novak’s point about the Left’s approach to this nomination.

I do grow increasingly troubled by the president’s decision not to nominate an originalist with a long record, like the outstanding Michael Luttig. I think it will be more difficult to nominate and confirm such a candidate to a second vacancy. I truly hope I am wrong. Moreover, I am uncomfortable with some of the arguments Republicans senators, Roberts’s handlers, and even some conservatives are making on behalf of Roberts, many of which fall into the category of technical points and process (e.g., his pro bono work in Romer totaled only five hours, etc.). While Roberts may be restrained to speak, we are not. And as a whole, our side doesn’t seem very enthusiastic about explaining the substantive objections to judicial supremacy to the greater public. I dare say that it would have been easier to make the case had a Luttig been nominated.


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