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Thursday, September 15, 2005

On Not Answering Questions

Yesterday during the hearings Senator Schumer launched what I thought was a pretty effective attack on why Roberts, who was fully free to express opinions in cases either in favor or dissent as a Judge, and fully capable of expressing opinions on cases as a private citizen could not, during the Senate Committee hearings express opinions on cases. This of contained the movie reference segment that has become somewhat well known, but I thought that the general line of attack was well thought out and made a pretty strong case. Roberts, who unlike Shumer had not had a chance to reherse for this particular exchange, utterly demolished this line of reasoning. Seattle Post-Intelligencer:

The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences. The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion. And in my experience, every one of those stages can cause you to change your view. The view you ask then of me, Well, what do you think, is it correct or not? or How would you come out? That's not a result of that process. And that's why I shouldn't respond to those types of questions. Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process. It is not a process under which senators get to say, I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you. That's not a bargaining process. Judges are not politicians. They cannot promise to do certain things in exchange for votes.
I suppose that Roberts has of course had time to think on why he shouldn't answer questions in general. Shumer though obviously prepared this particular line of attack on this concept in advance, and was able to refine it to be as strong as possible. Roberts was able, apparently on the fly to convincingly argue against an attack which I thought was a pretty good one. Not only was he able to be humorous immediately before with the movies, he was able to articulate extremely clearly and logically a principle that I think is tremendously important. It would be nice to be able to say that Roberts thinks about legal issues exactly the way I want him to. Failing that, it would be nice to know where he departs from my thoughts. That is something I would like to have. I thought that Glenn Reynolds 5 questions in the New York Times were good questions, and I would love to hear the answer to them. However, nice as this would be, I have a greater interest in 1) a Supreme Court that will hear a case with an open mind and 2) making sure that Supreme Court nominees do not in fact bargain for confirmation votes. Roberts has convinced me on this issue, and left me a very favorable impression of him.


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