Bench Memos

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Seeking Balance?


While we here at Bench Memos have had our disagreements over whether Senator Schumer is right to insist on wide-open questioning of John Roberts, I’ll bet we’re all agreed that the senior senator from New York is up to no good when it comes to why he wants what he wants.

Today at NRO, Keith Whittington has a fine article about the transparently bad argument Schumer has advanced about the alleged need for “balance” on the Court. What he really wants, of course, is a left-wing Court, as soon as possible. But of course, he is a left-wing senator, so this is no surprise. The real scandal, to which Keith alludes, is that academics such as Cass Sunstein and Laurence Tribe have aided and abetted the Schumers in the political world by putting forward their own pseudo-scholarly arguments for “balance.”

And for the record: Keith writes that back in the Reagan years Laurence Tribe “published” a book titled God Save This Honorable Court. “Published” it–that’s quite true. But as readers of The Weekly Standard may recall, there are serious questions about how much of that book Tribe actually wrote, how much of it was “written” by student assistants, and how much of it was simply stolen from political scientist Henry J. Abraham’s Justices and Presidents (retitled Justices, Presidents, and Senators in its most recent edition, and still the best thing on the history of Supreme Court nominations).

I have mentioned this offense against another’s intellectual property on a previous occasion here, and some readers might think I am vindictive. No, I just believe that responsible scholars should shun and shame irresponsible ones until they ‘fess up or get their comeuppance–neither of which has happened in the Tribe-Abraham case. (And don’t forget Tribe the teller of tall tales about himself, as Ramesh Ponnuru has written for NR.)


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