Are You Now, Or Have You Ever Been

[Michael Zimmer]

The real problem is to try to thread the needle between being left in
ignorance about the judicial philosophy of a nominee by not assembling
relevant information and going too far into demanding the nominee say how
she would decide very specific cases. There are a broad set of points of
judicial philosophy that seem to be shared by Federalist Society members,
even though there is a range of different points of view held by particular
members.  Inquiring of a nominee as to those points would seem to help
develop a basis for judgment as to how activist at overturning settled law
and making ndw law a  particular nominee would be.

I think that a major reason why so many observers have yet to take a
position on Judge Roberts is that so little is known about his judicial
philsophy since he can distance himself from the views of clients he
represented and he has written comparatively few judicial opinions.
Implicit in what David is saying is the notion that, for people of the
center and of the left, there may be a presumption that  Judge Roberts is
the least bad of the possible choices that would be presented. But that is
only a presumption.

Mike

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax


                                                                           
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             07/25/05 11:59 AM                                     Subject 
                                       Re: Are You Now, Or Have You Ever   
                                       Been                                
                                                                           
                                                                           
                                                                           
                                                                           
                                                                           
                                                                           




It's pretty foolish to ask about membership in the Federalist Society
because from personal experience, I can tell you that members range from
moderate conservatives (more moderate than, say, O'Connor or Kennedy) to
Christian rightists to anarchist individualists.  Judicial philosophy
ranges from Borkean anti-judicial review views to Randy Barnettian
presumption of liberty.  In short, membership in the Federalist Society
tells  you nothing about a nominee except that he or she is not "on the
left", which one presumes would be true about any Bush Supreme Court
nominee.

In a message dated 7/25/2005 12:53:53 PM Eastern Standard Time,
bobsheridan at earthlink.net writes:
 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
 that counts.

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