Friday, January 06, 2006

The Pocket Part

The Pocket Part

This is in interesting article, with responses from leading law professors, on the problem of questioning judicial nominees. It is a thorny issue. At one time judicial nominees were simply examined to see if they were bright, good citizens, and well accomplished. This led to a lot of unpleasant surprises. Nice people with a good resume sometimes turn out to have wicked judicial philosophies when they reach the highest human court in the land.

Today the Senators are mostly concerned with the political views of nominees. Will they uphold abortion on demand? Will they favor congressional power against presidential power? Will they maintain the status quo? If they will not maintain the status quo where will they take the country? But this is not easy to find out. How to expose the answers and convince people they are relevant?

Nominees usually refuse to discuss and case that might come before the court. This has the effect of not answering the questions the Senators want answered.

As a result the hearings are usually full of attacks on the nominees character via quilt by association, straw man arguments, and bald assertions of ill will. The nominees, if "conservative" respond that they will "follow the law" and that their personal beliefs are irrelevant. Most post-modernists refuse to accept this answer because they believe judges make up the law as they go based on their personal desires and the desires of the communities to which they hope to belong.

Scholars, like those writing these articles hope to find a way to break the log jam and get real answers. Most of the left leaning scholars want to abandon the practice of not commenting on matters that could come before the court by using discussions of old cases, discussions of clauses, or discusions of history. But all the matters still could make litigants in the future feel that the court is prejudiced because of comments made in such discusions.

A better way to tackle the matter would be a real discusion of judicial philopsophy and herminuetics. But I suspect most of the Senate and most of the audience would not care for or value such a discussion. It would also reveal the unpleasant truths about what people really are usually taught in law school and how in tension that is with common sense about the law and understanding texts and cases.

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