Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, July 25, 2005

Are You Now or Have You Ever Been . . .

And as long as we're talking about overblown concerns, how about this: apparently the best way to deflect legitimate questions regarding a judicial nominee's possible membership in, e.g., the Federalist Society, is to accuse the questioner of being McCarthyist. This from the party of McCarthy, of course.

Senator Cornyn, who anyone can speculate would have been happy to sit at McCarthy's side on HUAC if he'd been elected to the House in the fifties, had this to say:

"Obviously [the Federalist society] wasn't central in [Roberts'] life. But it's not like being a member of the Communist Party," Cornyn said after meeting Roberts. "The Federalist Society is an organization that hosts debates from people with a lot of different viewpoints. I think serves a very useful purpose for lawyers and people interested in these viewpoints. But I don't think that should be a limiting factor at all."

I agree; the Federalist Society does emphasize debating. Indeed, my only direct contect with the Pitt Law chapter of the FS during my tenure there was a debate hosted between some FS guest and a left-wing hot-shot from the Pitt faculty to debate the merits of affirmative action. The debate was entertaining, robust, civil, and everything a legal debate between professionals ought to be (professional debate for its own sake, of course, no longer having any place on the floor of the Senate). But let's not kid ourselves: just because FS promotes debate doesn't mean it, and by extension its members, hasn't staked out some very clear positions in the ongoing debate over the constitutional role of the Article III judiciary.

Here's the problem: we already know that we're not allowed to ask about cases, right? Well, if we can't ask about specific issues, then we should be able to ask about judicial philosophy and related topics, if confirmation isn't going to turn into some hagiographic, pulpit-pounding sham of a proceeding (and we already have enough of those). As a commenter to JNOV's post observed, the right would be plenty interested in knowing whether a nominee were a member of the ACLU. And that the latter does impact litigation while the FS does not hardly distinguishes them. Both groups exist, by and large, to advance the public perception of various legal stalking horses each holds dear; the ACLU is far more prominent for its public statements than it is for its litigation.

I for one would like to know all of the legal and professional affiliations of any candidate for the Supreme Court. As noted previously on this site, the integrity of the judicial system lies just as much in the perception of fairness and objectivity. A nominee's affiliation with any group that stakes out clear territory on one side of the sorts of debates that occupy the United States Supreme Court tends to create the appearance of prejudice, of impropriety, the suggestion that with regard to certain issues a nominee's mind is made up long before the particular facts of the case serving as a vehicle for the issue have emerged as a matter of record through proper exercise of the adversarial system.

Nor is JNOV's UPDATE disclaimer, indicating he's more bemused than bothered by the Federalist Society-related questions at issue, all that comforting, a propos the rhetorical gamesmanship I began this post to excoriate. He quips: "As Marx observed (and I paraphrase): history repeats itself -- first as tragedy, then as farce."

This isn't history repeating itself. Certainly, it's not the Red Scare repeating itself (though it might, to be fair, reflect a minor Red State Scare). McCarthy went after everyone, not just judges and public servants, and he set out to ruin careers and succeeded all too often. This won't ruin anything except to the extent it reveals that Roberts is unqualified (something unlikely to happen); it merely gets to the heart of Roberts' judicial philosophy, which either is fair game or we might as well get rid of the confirmation process entirely.

Mocking, minimizing, tacitly tarring -- it's amazing the lengths the right seems to be prepared to go to avoid an honest discussion of their nominee to occupy one of the nine most influential seats in the United States government for anywhere from twenty to thirty-five years. As my readers know, I've largely been hospitable to Roberts' nomination, and to the president's prerogative to appoint a qualified candidate who suits his fancy (within reason), but it's bothersome the degree to which the right is pushing for what someone (I think it was Turley in the belowcited column) dubbed "un-confirmation hearings."

UPDATE: I should add, by the bye, that I wouldn't consider it improper to inquire of a Supreme Court nominee whether he had ever identified with the Communist Party. It seems a fair question. I'd like to know whether s/he were Amish, Green, a Rotarian, a Klansman, etc. They're all of a piece, in one sense or another -- no one of them necessarily dispositive as far as I'm concerned (well, the Klan I imagine would be dispositive for most of us), but all illuminating and therefore properly in-bounds of any rationally useful inquiry. Come to think of it, I'd sort of like to know whether a nominee lives with 23 cats, his mother, or anything else really weird. But then I'm nosy.


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