Questioning Miers

Tepker, Rick rtepker at
Mon Oct 10 08:18:10 PDT 2005

I don't think your comments caused "such a turn."  No need to be sorry.


Yes, theory influences actual cases.  I think the problem is whether the
questions reflect some sort of "gotcha" - "I know more than you . . ."
tone, or whether (and how) senators can inquire about the "basics."


Rick Tepker

Calvert Chair of Law and Liberty

  & Professor of Law

University of Oklahoma

Norman, Oklahoma




From: RJLipkin at [mailto:RJLipkin at] 
Sent: Monday, October 10, 2005 10:13 AM
To: Tepker, Rick; SLevinson at; tushnet at
Subject: Re: Questioning Miers


        I do not see how my original post turned into a discussion about
whether nominees should be queried on works of academic scholarship.
Although, I do believe such works are relevant to judging, my original
statement made no mention of any texts independent of caselaw. For any
subsequent statements I made to suggest such a turn I am deeply sorry.


        Can we agree that constitutional theory and history exist in
actual cases?  If so, let's imagine no one ever wrote a book or article
on either. Is it then appropriate to question Ms. Miers on
constitutional theory and the development of constitutional law as these
topics exist in actual cases?




Robert Justin Lipkin
Professor of Law
Widener University School of Law

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