Walter Dellinger is a law professor at Duke, a former assistant attorney general (1993-1996), and former acting solicitor general (1996-1997). He’s smart, and I usually find what he has to say sensible, if not always persuasive. In an OpEd in today’s Washington Post, however, I had to wonder if he was being frivolous.
In an attempt to justify questioning Supreme Court nominees about their views on controversial issues (a goal, by the way, with which I am not unsympathetic), Dellinger writes, among other arguments, the following:
Why would it be inappropriate to know as much about Roberts’s views on controversial legal issues as we know about Justice John Paul Stevens’s views? What is wrong with asking a nominee whether he or she agrees with Justice Antonin Scalia’s dissenting opinion in Planned Parenthood v. Casey when we know that Scalia agrees with it and Scalia will be able to take part in future related cases without anyone suggesting that to be a problem.
Well, here’s a reason why it may be inappropriate. What if, hypothetically, Justice Scalia had read none of the briefs filed in Planned Parenthood v. Casey, had not heard the oral argument, had not read all the draft opinions that were circulated among the justices, but had attended the meeting where the matter was discussed and, on the basis of what he heard there decided how to vote. Would we think he had done his job?
If not, why would we expect a nominee to declare how he would have voted, or even what kind of opinion he would have written, if he had not read the record that was before the Court, attended the oral argument, and sat in on discussions among the justices and their clerks?
I thought our new “minimalists” (Prof. Cass Sunstein’s term) wanted Justices to be guided by the particular facts of each case, rather than apply pre-conceived theories/philosophies/interpretive methods/jurisprudential ideas. How could such a nominee answer Dellinger’s questions?
Its useful to hear a nominee analyze arguments, and controversial issues are the ones we argue about.
“Hypothetically”, ha.
Once upon a itme a state Supreme Court decision came down on a case I tried. The decision referred to my failure to do something and insisted that in future lawyers in my position do that thing. Problem is, I actually HAD done that thing and my doing of it was on the record.
I later had occasion to speak with the justice who had written the opinion, pointed out these facts, and asked whether he or the other justices had just not noticed what was clearly in the record?
His response was, “We don’t have time to read all that shit”. It’s true, but I was shocked to hear such honesty.
So don’t assume ANY judge has EVER read ANYTHING, no matter how essential to his decision. The Justice was right, they don’t have time. Clerks read the parts they think matter and tell the justices what’s in the record, because the clerks don’t have time either. Welcome to the judicial sausage factory.