July 27, 2005

Should -- can? -- the Senators make Judge Roberts critique old cases?

Lawprof Vik Amar thinks so.

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.

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.
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:
GRUTTER v. BOLLINGER [the University of Michigan affirmative action case]

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]
Those bracketed descriptions are mine, by the way. Legal types might enjoy comparing my little descriptions to Amar's -- particularly the one for Seminole.

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?


Craig said...

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?

Craig said...

(I recognize the rather obvious and trite nature of my prior comment, but I still thought something of that nature belonged here.)

Unknown said...

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.

olivia1 said...

Little off topic but I just received my copy of Newsweek and, of course, was not surprised that their cover copy attempted to plant little seeds of alarm (for some) should Roberts get confirmed. Does anyone recall what their cover was like for Ruth Bader-Ginsburg or Clinton's other nominee?

Wave Maker said...

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.

The Mojician said...

Is "judgement" now being accepted in place of "judgment?" Althouse is usually on the cutting edge of such changes. (It's in the third-to-last sentence of the second-to-last paragraph of the posting.)

John Thacker said...

"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.

Ann Althouse said...

It's not good American style to have the "e." Just a typo.

Beldar said...

Biden's trap was perfectly calibrated for a law professor. A "litigator" might have fallen for it too. But a trial lawyer never would have.

By "trial lawyer," I do not mean a lawyer who specializes in plaintiffs' personal injury cases; some of those are trial lawyers, some aren't, and the press does the profession a disservice when it equates those two terms. No, "trial lawyer" means a lawyer who regularly tries cases to a verdict, at least some of which are jury trials; in this same usage system, "litigator" is a derogatory term, meaning someone who files lawsuits, does discovery, makes motions, but always, always settles. Litigators outnumber trial lawyers by something like 20 to 1, and the ratio is climbing as it becomes harder to get trial experience.

One of the things that distinguishes a trial lawyer from a litigator is a sense of how the public will react to what's going on — in the courtroom or, probably, in a Senate hearing.

I worry that Judge Roberts may be more the litigator than the trial lawyer. But he's surely educable, and someone will surely try to help him avoid the pitfalls that slayed Judge Bork.

Ann Althouse said...

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.

alikarimbey said...

Any way the text can be posted here? The Amazon.com does not let me read it. I want to know how Biden tricked Bork. Thanks much.