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Bench Memos

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Re: Getting to the Merits



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I wouldn’t get carried away, Rick, about the way “most people” think “about the role of courts, the rule of law, and the structure of the Constitution.” Most people don’t think much about these topics. There are ways to describe conservative legal positions that will command majority assent; there are ways to describe liberal legal positions that will also command majority assent. That said, I do agree that we would be better served by arguing about the superiority of conservatives’ underlying view of judicial power and the Constitution to liberals’ view of the same than by arguing about procedural matters, the deference that Congress allegedly owes to the president’s nominees, the alleged impermissibility of considering “ideology” in judicial confirmation, etc.



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