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Bench Memos

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Questioning



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I actually believe there are lots of questions that can be asked of Roberts for the purpose of discerning his judicial philosophy. He needs to familiarize himself with the relevant ethics codes, as Brother Alt makes clear. But questions about his interpretation of the commerce clause, the takings clause, and so forth are perfectly legitimate. Those of us who, dare I say, are members of the Federalist Society (unlike Roberts) hear sitting judges expound on these topics all the time. I differ with Brother Franck on whether Scalia was right in recusing from the Newdow case and think he skated too close to the line not to recuse. But even in U.S. v. Nixon, I’ve always thought it interesting that Rehnquist recused but Berger did not. Given the immense importance of these nominations, I think a fulsome but appropriate inquiry is essential without turning the process into a circus as Schumer urges.



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