Chief Justice nominees

Thu Feb 24 14:44:23 PST 2005

I think that professors can and sometimes should comment on both the
technical legal competence of nominees and their ideology/judicial
philosophy, etc. However, we should not attack or defend the one on the
pretext of assessing the other, as happens too often.

For example, I think that Laurence Tribe is mistaken on enough important
con law issues that I would not support his nomination. However, if he
were ever nominated (not very likely) and I was called on to testify (even
less likely), I would have to point out that he's extraordinarily well
qualified in terms of technical competence and that the sole grounds of my
opposition would be  his positions on key legal issues.

If the ABA followed this rule, they would have avoided embarassments such
as having several of their committee members give Bork a low rating on
qualification (I say this despite the fact that I have serious qualms
about Bork) and (even worse) giving Posner a mediocre "qualified" rating
when he was appointed to the 7th Circuit. In such cases - where the ABA or
any other organization opposes a nominee purely based on their philosophy
or ideology - they should make it clear that that is the true ground of
their opposition. The same rule, I think, should apply to law professors
when we comment on these matters in our capacity as experts.

Ilya Somin

On Thu, 24 Feb 2005, Scott Gerber wrote:

> I agree with Frank Cross, as I tried to suggest in my original email
> about Posner.
> Scott Gerber
>
>
> Frank Cross wrote:
>
>
> >
> >I take no issue with Mark Graber's claims, but they are consistent with
> >what I meant.  His 2a is probably better answered by political
> scientists,
> >and 2b is really about technical judging style rather than ideology,
> which
> >is what I meant should be addressed by legal scholars.  But you don't
> see
> >much of this.  Except when a professor is supporting an ideologically
> >opposed nominee (usually a former professorial colleague), in which
> case
> >they invoke very general tributes to legal aptitude.
> >
> >
> >At 01:15 PM 2/24/2005, Mark Graber wrote:
> >>1.  Well, if it is a political act, they ought to be talking to
> >>political scientists!
> >>
> >>2. Seriously, might constitutional law experts (not all of whom are law
> >>professors) have relavant expertise on some matters of political
> >>interest that go beyond apolitical aspects of judging.
> >>
> >>A. What kind of conservative/liberal is this character.  Libertarian or
> >>social conservative?  Oakeshott or Hayet?  Consistent or tends to change
> >>with the political tides?
> >>
> >>B. Does the person have some distinction legal tendencies.  Likes or
> >>does not like overruling.  A legal positivist like Scalia or more
> >>influenced by natural law, a law Thomas.
> >>
> >>etc
> >>
> >>MAG
> >>
> >> >>> Frank Cross <crossf at mail.utexas.edu> 02/24/05 2:06 PM >>>
> >>
> >>Well, I'm a mite frustrated with the whole process.  If this is a
> >>political
> >>act, and it reasonably can be so characterized, what's the point in law
> >>professors weighing in?  Why should our political opinions be privileged
> >>
> >>over those of any other American?
> >>
> >>A law professor recommendation, if it is to carry any weight, would go
> >>to
> >>apolitical aspects of judging, such as intelligence of reasoning or
> >>clear
> >>opinion writing or such.  When law professors line up on their
> >>ideological
> >>teams, the only effect is to demean the practical significance of law
> >>professors.
> >>
> >>
> >>
> >>At 12:45 PM 2/24/2005, RJLipkin at aol.com wrote:
> >> >In a message dated 2/24/2005 11:52:00 AM Eastern Standard Time,
> >> ><mailto:Tushnet at law.georgetown.edu>Tushnet at law.georgetown.edu writes:
> >> >As I read the Forster passage it mattered to him that the person was a
> >> >friend.  Does a professional acquaintance fit within that category?
> >> >
> >> >         I agree that friends and personal acquaintance make the
> >>question
> >> > of support more difficult. Affection for one's friend is (and should
> >>be)
> >> > strong and weigh heavily in one's practical deliberations.  But
> >>signing a
> >> > petition endorsing an intelligent, knowledgeable, likable, and honest
> >> > individual who vigorously opposes one's fundamental political (and
> >>moral)
> >> > values is a political act, and I should think needs to be defended as
> >>such.
> >> >
> >> >       Given Mark's categories of  affirmatively supporting,  actively
> >> > opposing, and "not taking a position in circumstances where others
> >>might
> >> > reasonably expect one to take a position," signing a petition
> >>endorsing
> >> > the nomination (?) and confirmation of a federal judge, is certainly
> >> > expressing affirmative political support, support that one might
> never
> >>
> >> > consider expressing were the individual not connected to the legal
> >> > academy. The probable reason for not supporting a stranger with
> >>similar
> >> > virtues as one's friend is because he or she would be bad for the
> >> > country.  Thus, why does friendship alter one's decision? And if
> >> > friendship does explain and justify publicly supporting one's
> >> > acquaintance, then E.M. Forster's side wins. Nevertheless, one should
> >> > recognize that another side might consider Forster's dilemma between
> >>love
> >> > of one's country and love of one's friends too facile a dichotomy to
> >>be
> >> > helpful here.
> >> >
> >> >         However one resolves the dilemma between country and friends,
> >>do
> >> > we at least agree that publicly endorsing the confirmation of a judge
> >>who
> >> > rejects some of one's basic values is a political act needing
> >>justification?
> >> >
> >> >Bobby
> >> >
> >> >Robert Justin Lipkin
> >> >Professor of Law
> >> >Widener University School of Law
> >> >Delaware
> >> >_______________________________________________
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> >>
> >>
> >>_______________________________________________
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> >>
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> >
> >
> >_______________________________________________
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>
> --------------------------------------
>
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty/gerber/
> _______________________________________________
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>