Bench Memos

NRO’s home for judicial news and analysis.

Re: “Bum Rap”


Let me take slight issue with Brother Alt, for whom I have great respect and admiration.

I think Robert is entirely correct that it is the lawyer’s function to be an advocate and therefore that it is a mistake to assume there is necessarily consonance between what a lawyer argues as a litigant and what he would rule as a judge. That said, though, lawyers have a professional responsibility only to make arguments that they believe are supportable under the law as correctly understood. Thus, while an argument made as an advocate is not dispositive of what a lawyer thinks, I think it’s highly relevant.

More importantly, as a tactical matter, nothing looks worse than when a witness in a hearing tries to walk away from prior statements he has made (and this would be especially so for witnesses who are nominees and are being asked by Senators about statements made to the United States Supreme Court).

Roe is crucially important to this debate for reasons that far transcend abortion. It is important to establish, here and now, the principle that a belief that Roe was poorly reasoned and wrongly decided is an entirely respectable view to hold – indeed, it seems now even to be the view of the majority of the Supreme Court, which relies on stare decisis to sustain Roe while pretty much shredding its underpinnings.

If Judge Roberts’ position is that Roe is bad law and that what he said in his brief was right, I think he will make a much better impression in his testimony if he says so outright. And even those who are pro-abortion, if they are reasonable, would have to say that a belief that Roe is a badly reasoned decision, and a belief that our system’s default position should be democratic outcomes rather than judicially imposed policies, is a mainstream position.


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