Are You Now, Or Have You Ever Been
bobsheridan at earthlink.net
Mon Jul 25 09:51:30 PDT 2005
We ask prospective jurors whether they belong to organizations,
including religious organizations, whose tenets include taking positions
for or against issues likely to be in contention during the trial.
Then there is the question as to whether membership in an organization
for one reason necessarily means that a former member will regard
himself bound by the tenets of organization during a later chapter in
his life. Many organizations, including the Federalist Society, can
only wish they remained that influential down the road.
Hugo Black was member of the Ku Klux Klan in Alabama when he was running
for election. You can read his letter of resignation from "the Knights
of the Ku Klux Klan, dated July 9, 1925, in the Roger K. Newman bio
following p. 336. Pantheon/Random House, 1994,1997. Following his
nomination Black made a more-or-less clean breast of things in a radio
broadcast that sufficed to lay the issue sufficiently to rest in those
tolerant (of evidence of racism) times to allow confirmation. Black's
record on the Court was entirely opposite from what you might have
expected of a member of the KKK.
Many people take their oaths of office quite seriously when they perform
legal functions and do put aside personal predilection in order "to
follow the law." How many times have you heard jurors, post-verdict,
say as some did for example, that they believed Michael Jackson good for
some sort of misconduct but that the DA failed to prove it in this case.
One of the reasons that we hope the president, as baseball team manager,
puts in a new pitcher is that we can never really know exactly what the
game situation will be like in the later innings, only that there will
be a lot of pressure and yelling with the game on the line.
No matter what the phenom has done in the past, it's what he throws next
Volokh, Eugene wrote:
> I would think that asking a nominee for high federal office -- and
>especially for the Supreme Court! -- whether he is or has ever been a
>member of the Communist Party would have been perfectly appropriate in
>the 1950s. In fact, not doing so would, I think, have been quite
>reckless. Whatever one might think of grilling nongovernment employees
>or low-level government employees on the subject, surely it would have
>been very important both for the President and the Senate to know
>whether a prospective Supreme Court Justice had been a member of a group
>that espoused violent revolution, and that was at the time of the
>question in alliance with the nation's foreign enemies.
> Whether it's proper to ask such questions about membership in the
>ACLU or in the Federalist Society may be a different story. I think
>it's proper to ask, and to insist on answers, though I think it would be
>wrong for a Senator to concern himself much with this information when
>casting his vote (partly because, as to character or fitness for office,
>membership in either group isn't tremendously telling [as opposed to
>membership in the Communist Party or the Nazi Party or some such], and
>partly because, as to ideology, membership in the Federalist Society --
>a pretty big tent -- would reveal little more about a candidate than is
>likely already known).
> But Orin was quite right to say that this should not be equated with
>the McCarthy hearings; there's nothing "McCarthyite" in the pejorative
>sense of *improper* inquiry into people's political lives about asking a
>nominee for high federal office whether he is now or has ever been a
>member of the Communist Party.
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
>Sent: Monday, July 25, 2005 9:07 AM
>To: conlawprof at lists.ucla.edu
>Subject: Are You Now, Or Have You Ever Been
>A Member of the Federalist Society?
>Over at the Volokh Conspiracy, Juan Non-Volokh (here) and Orin Kerr
>(here) have posts about how the Democrats on the Senate Judiciary
>Committee are using a script that somehow seems eerily familiar of
>another time and a not-so-different place. Prof. Kerr, by the way, is
>quick to point out that he has "reworked the last sentence to minimize
>the risk that a reader would assume I am equating this issue with the
>McCarthy hearings, which at least one commentator seemed to believe."
>Don't worry, Owen. The similarities are totally superficial.
>Cheers, Rick Duncan
>Welpton Professor of Law
>University of Nebraska College of Law
>Lincoln, NE 68583-0902
>"When the Round Table is broken every man must follow either Galahad or
>Mordred: middle things are gone." C.S.Lewis, Grand Miracle
>"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
>numbered." --The Prisoner
>Start your day with Yahoo! - make it your home page
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