Wasn't the failure to do precisely that the reason Senator Schumer voted against Roberts' appointment to the Court of Appeals? Here's what Schumer says:
I voted against him for one simple reason: And that is he really didn't answer the questions that I and others posed to him fully and some he just refused to answer.Amar's proposal is limited to one of the things Schumer wanted and didn't get out of Roberts: the Senator names a case and challenges the nominee to analyze it. Unless the cases are identified in advance, it would be reckless to undertake a critique on the fly. But Roberts is quite likely, even then, to say that nothing can compare to the way you would study the questions in making a real decision. So I think it's a pipedream, but I did enjoy Amar's list of cases he'd like Roberts to have a go at:
I asked him, for instance, his views of a previous case, Morrison, which involved the great reinterpretation of the commerce clause and cutback on the Violence Against Women Act, and he said he wouldn't answer it.
I asked him, for instance to name three cases that he disagreed with, already settled cases in the Supreme Court; he wouldn't answer that. I asked him what cases he considered activist and he picked an 1899 case from the California State Supreme Court. This is not being fully candid with the committee in letting us explore somebody's views. He did answer some questions. But in too many he did not. And that's why I voted no.
GRUTTER v. BOLLINGER [the University of Michigan affirmative action case]Those bracketed descriptions are mine, by the way. Legal types might enjoy comparing my little descriptions to Amar's -- particularly the one for Seminole.
STENBERG v. CARHART [the "partial-birth abortion" case]
ATKINS v. VIRGINIA [banning the execution of the mentally retarded]
McCREARY COUNTY v. A.C.L.U [finding that a particular courthouse display of the 10 Commandments violated the Establishment Clause]
SEMINOLE TRIBE v. FLORIDA [finding Congress lacks the power under the Commerce Clause to abrogate state sovereign immunity]
Oh, it would be an "intellectual feast" indeed if the Senators could get Roberts to do this. But can you imagine how they'd twist his answers and bounce political arguments off them? They'd appeal to the home audience, who could in no way follow the legal difficulties of these issues. The foolhardiness of playing into that would be so great that we ought to question Roberts' judgement if he does. But, you say, he's a smart guy. He's a brilliant litigator. He could do it. That's what Bork thought when he answered questions like that.
Please, go here, begin reading at the star and read a page and a half -- a brilliant description of Joe Biden triumphing over Robert Bork. Isn't Chuck Schumer itching all over for a moment like that?
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Should it bother us that there is such a mammoth disconnect between what law professors and DC literati think is right and justice and what the American people think is right and justice? Do "we" regard the American people as so torpid as to be unable to follow the brilliant and insightful moral distinctions made by the law professors and DC insiders? And if so, is the solution not to add more dialogue to the discussion, but rather to hush-hush what goes on in our courts and trust the Educated to decide for the rest of us?
(I recognize the rather obvious and trite nature of my prior comment, but I still thought something of that nature belonged here.)
You know, I just realized that for the foreseeable future, I am going to have to deal with Senator Chuck Schumer on a daily basis. And every time I think of him, I must suppress the urge to vomit.
Sometimes I think the anarchists are right.
Funny, I remember watching that entire exchange between Biden and Bork, and I remember thinking to myself how annoyed I was that Biden would presume to know what the hell he was talking about (I think 85% of his oratory was cribbed), but how crafty he was at orchestrating the political machinery to make Bork look like an orge.
"judgement" has been accepted by dictionaries and other sources as an alternate spelling for "judgment" for quite some time. I don't believe that it's one of the British/American English differences. Some references I've seen have "judgement" as the standard.
It's not good American style to have the "e." Just a typo.
Beldar: Funny, where I practiced "trial lawyer" was the sneer and "litigator" was the positive term!
Anyway, Bork fell for flattery -- false flattery. He had a blind spot made out of his own high opinion of himself. It was a rich opporunity.
And I think Roberts would see the big picture and sense when people were leading him into a trick -- for any number of reasons, one of which may be that he does, it seems, have strong emotional intelligence.
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