Questioning Miers
Mark Tushnet
tushnet at law.georgetown.edu
Sun Oct 9 15:49:05 PDT 2005
I'm reasonably confident that the jusice quoted was Stephen
Breyer (among other things, which justice is most likely to have
had such a concersation with the Dean of Harvard Law School?).
I think, though I am less confident, that the reference was to a
conference I attended as well. If so, (a) the justice's reported
comment seems reasonably accurate, to the extent that I know
anything about the job justices have to do every day, and (b) it's
not beyond my imagining that I would have made a parallel
comment about the relevance of the matters discussed at the
conference to the things I think about every day in my
professional capacity.
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Wait a minute, please! I offered my questions as part of a sincere attempt
to assess the nominee's knowledge of constitutional theory and law. Are such
attempts inappropriate in a confirmation hearing? Nothing inquisitorial need
be associated with these questions, if asked sincerely and civilly. Is the
position that trying to learn about the candidate's working understanding of
the development of constitutional doctrine is necessarily condescending or in
some other way inappropriate? Should we be impressed with stories about
current Supreme Court Justices inability to understand the discussion at some
gather of constitutional law and theory buffs? I'm not; nor am I impressed by the
anti-intellectualism express by the Justice who contends that such knowledge
"is utterly beside the point with regard to what he actually does as a
justice." I cannot imagine good constitutional law, history, and theory being
irrelevant to constitutional adjudication. Maybe the Justice in the story went to
the wrong gathering. At any rate, intellectual approaches to law or any
field of inquiry are not always dispositive, but they're a good start. And the
anti-intellectualism expressed by Sandy's Justice frightens me.
I am not sure what Sandy means by "knowledge of (what law professors
deem) constitutional law." But construing my post as limiting knowledge of
constitutional law in this manner, even when posted on a List of
constitutional law professors, is adding a sentiment foreign to what I said or intended.
I'm concerned with knowledge of constitutional law, however reasonably
interpreted. Are civil inquiries designed to elicit such knowledge now off the table?
Many people on and off this List believe one or more of the
following should not be asked of the nominee: A nominees should not be asked his or
her position on concrete hot-button (or even cold-button) issues which might
come before the Court, nor constitutional history and the development of
constitutional doctrine, nor judicial philosophy, nor how the candidate approaches
constitutional questions. If that's right, what's left to ask? The intent of
my post was to provide a type of question where the nominee could display
his or her knowledge of constitutional law and theory, constitutional history,
and analytic acumen. Why on earth is that somehow inappropriate in Ms. Miers
case? It's no sin for a lawyer not to possess such knowledge. I would
suspect the overwhelming majority of American lawyers could not demonstrate such
knowledge. But then an overwhelming majority of American lawyers ought not to
become an Associate Justice of the Supreme Court.
I'm not wedded to any one type of question. What I am deeply committed to
is the principle that the Senate has the prerogative (and the duty) to elicit
from the nominee sufficient information about his or her familiarity with
constitutional law and adjudication so that the Senators have something to which
they can consent (or not). If accountability for Supreme Court Justices
exists at all, it comes to a virtual end after confirmed. It's now or never.
If John and Sandy dislike my questions, fine. But then it seems to
me they should suggest some mechanism likely to elicit information about the
nominee's qualifications that makes the Senate's responsibility to consent
constitutionally meaningful.
Bobby
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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<DIV> Wait a minute, please!=20=
I=20
offered my questions as part of a sincere attempt to assess the nominee's=20
knowledge of constitutional theory and law. Are such attempts inappropriate=20=
in a=20
confirmation hearing? Nothing inquisitorial need be associated with th=
ese=20
questions, if asked sincerely and civilly. Is the position that trying=20
to learn about the candidate's working understanding of the=20
development of constitutional doctrine is necessarily condescending or=20=
in=20
some other way inappropriate? Should we be impressed with stories about curr=
ent=20
Supreme Court Justices inability to understand the discussion at some gather=
of=20
constitutional law and theory buffs? I'm not; nor am I impressed by the=
=20
anti-intellectualism express by the Justice who contends that such knowledge=
"is=20
utterly beside the point with regard to what he actually does as a justice."=
I=20
cannot imagine good constitutional law, history, and theory being irrelevant=
to=20
constitutional adjudication. Maybe the Justice in the story went to th=
e=20
wrong gathering. At any rate, intellectual approaches to law or any field of=
=20
inquiry are not always dispositive, but they're a good start. And the=20
anti-intellectualism expressed by Sandy's Justice frightens me.</DIV>
<DIV> </DIV>
<DIV> I am not sure what=
=20
Sandy means by "knowledge of (what law professors deem) constitutional law."=
But=20
construing my post as limiting knowledge of constitutional law in this manne=
r,=20
even when posted on a List of constitutional law professors, is adding a=20
sentiment foreign to what I said or intended. I'm concerned with knowle=
dge=20
of constitutional law, however reasonably interpreted. Are civil inquir=
ies=20
designed to elicit such knowledge now off the table?</DIV>
<DIV> </DIV>
<DIV> Many people on and off=20=
this=20
List believe one or more of the following should not be asked of the nominee=
:=20
A nominees should not be asked his or her position on concrete=20
hot-button (or even cold-button) issues which might come before the Court, n=
or=20
constitutional history and the development of constitutional doctrine, nor=20
judicial philosophy, nor how the candidate approaches constitutional=20
questions. If that's right, what's left to ask? The intent of my post was to=
=20
provide a type of question where the nominee could display his or her knowle=
dge=20
of constitutional law and theory, constitutional history, and analytic acume=
n.=20
Why on earth is that somehow inappropriate in Ms. Miers case? It's no s=
in=20
for a lawyer not to possess such knowledge. I would suspect the=20
overwhelming majority of American lawyers could not demonstrate such=20
knowledge. But then an overwhelming majority of American lawyers ought=
not=20
to become an Associate Justice of the Supreme Court.</DIV>
<DIV>
<DIV> </DIV>
<DIV> I'm not wedded to any one typ=
e of=20
question. What I am deeply committed to is the principle that the Sena=
te=20
has the prerogative (and the duty) to elicit from the nominee sufficient=20
information about his or her familiarity with constitutional law and=20
adjudication so that the Senators have something to which they can consent (=
or=20
not). If accountability for Supreme Court Justices exists at all,=20
it comes to a virtual end after confirmed. It's now or never. </DIV>
<DIV> </DIV>
<DIV> If John and Sandy disli=
ke=20
my questions, fine. But then it seems to me they should suggest some=20
mechanism likely to elicit information about the nominee's qualificatio=
ns=20
that makes the Senate's responsibility to consent constitutionally meaningfu=
l.=20
</DIV>
<DIV> </DIV>
<DIV>Bobby</DIV></DIV>
<DIV> </DIV>
<DIV><FONT lang=3D0 face=3DArial size=3D2 FAMILY=3D"SANSSERIF" PTSIZE=3D"10"=
>Robert Justin=20
Lipkin<BR>Professor of Law<BR>Widener University School of=20
Law<BR>Delaware</FONT></DIV></FONT></BODY></HTML>
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