Kerr on Lithwick
Law Professor Orin Kerr has his own analysis of Dahlia Lithwick's article on the language issues that the Democrats have with judicial nominees. Kerr thinks that Lithwick is off base by assuming that the public cares about grand things like legal theories. They're really looking for something much simpler than that from their judges...
One of the biggest weapons used against Robert Bork was his view that a Supreme Court appointment would be a wonderful intellectual opportunity (or something like that). If I didn't know what Bork really meant, a statement like that would make me nervous. That sounds like a law professor who is itching to get on the Court to monkey around with the Constitution. While that not might be an example that is overtly "political" as stated in Kerr's post, it sounds like it goes beyond the Roberts/Alito rule of law idea. It sounds like it goes beyond the narrow role of judges. In my opinion, Bork's record from the DC Circuit showed that he wasn't likely to do that. The statement was just part of bad committee hearing prep. I still think that is the type of concern people have: judges will be political animals, driven by policy and legal theory goals, and will forget the true, limited nature of their jobs.
My sense is that the public debate tends to be about the law/politics distinction. My guess is that if you ask nonlawyers what they want in a Supreme Court Justice, most will say that they want a Supreme Court Justice who follows the law rather than plays politics. Both Roberts and Alito delivered on that wish. Both emphasized that they would follow the law rather than try to reach any particular result. It's the animating idea of Roberts' umpire analogy, as well as Alito's frequent statements that he believes in the rule of law.I think he may be right. It's fun to debate the nature of originalism or the merits of a living Constitution, but those are big discussions. Those are debates that legal scholars have in law review articles for years and years (and never get settled). It's likely that most people just want a Justice who is going to follow the law and keep politics out of their decisions as much as possible.
One of the biggest weapons used against Robert Bork was his view that a Supreme Court appointment would be a wonderful intellectual opportunity (or something like that). If I didn't know what Bork really meant, a statement like that would make me nervous. That sounds like a law professor who is itching to get on the Court to monkey around with the Constitution. While that not might be an example that is overtly "political" as stated in Kerr's post, it sounds like it goes beyond the Roberts/Alito rule of law idea. It sounds like it goes beyond the narrow role of judges. In my opinion, Bork's record from the DC Circuit showed that he wasn't likely to do that. The statement was just part of bad committee hearing prep. I still think that is the type of concern people have: judges will be political animals, driven by policy and legal theory goals, and will forget the true, limited nature of their jobs.
