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Bench Memos

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Philosophical Moment



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We’ve discussed at length what should or should not be asked John Roberts, and how he should or should not answer. What bothers me about this nomination is that conservative senators and commentators (not here) are blowing a great opportunity to engage the Left on judicial philosophy. We should engage on the commerce, religion and takings clauses. We should engage on so-called privacy rights and abortion. We should challenge the Left’s equal protection jurisprudence (including, in my view, the inevitable decision on same-sex marriage) and Congress’s legitimate power to reduce (or expand) judicial jurisdiction. Instead, conservative senators and commentators are surrendering the field with defensive and bureaucratic arguments. We should debate the proper role of the Court, not side-step it. The Court is too powerful and the justices are out of control. From partial birth abortion and eminent domain to foreign law and due process rights for unalwful enemy combatants, the public stands with us.



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