srbagenstos at wulaw.wustl.edu
Mon Oct 10 08:30:39 PDT 2005
I'm with Bobby on this point. I don't know why it would be at all useful to set up as a qualification that a nominee has read (and has a position on!) works of legal scholarship. I think it'd be nice if judges/justices paid attention to what we do, but surely there's a point of rational ignorance here. Sure, ask here about what it means to be a strict constructionist. Ask her what's the role of history in constitutional interpretation, whether the Reconstruction Amendments worked a fundamental change in our federal system, and what lesson she takes from the clash between the Court and FDR. But name three articles you've agreed with, three you've disagreed with, and three that've left you saying "wah?"?? That's just saying you think Justices should be like us, and I think there are already too many of them like us.
I'm not endorsing Scott Gerber's notion that Miers is "anti-elite." It's a matter of competing elites, and if you ask me which elites have more power in this country, I'd say it's the business elites that Miers has spent her life (except for that summer in San Francisco) representing rather than the pointy-headed intelligentsia. (And I'd say that the views of many pointy-headed folks -- even liberals -- on business-related issues tend to be pretty sympathetic to the position of business.) A true anti-elite pick would be a plaintiff's tort lawyer, or a legal aid lawyer who spends his or her life litigating in the lowest courts in the land.
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
Personal Web Page: http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog: http://disabilitylaw.blogspot.com/
>>> <RJLipkin at aol.com> 10/10/2005 10:13 AM >>>
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 mentio
n 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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