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Roberts Reviewed

the breakfast table
entries
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from: Dahlia Lithwick
to: Viet Dinh and Cliff Sloan

The Roberts Nomination: A Detective Story

Posted Friday, July 22, 2005, at 4:10 PM ET

Dear Cliff and Viet,

I don't know about you guys, but if my e-mail is any indicator, this confirmation is so NOT going to be a snooze. Even though we all seem to agree that there isn't much to fight over, at least in terms of Roberts' professional and judicial record, the stakes are too massive, and dudgeons are already too high. Everyone has gone nuts, and I frankly think they'd be equally nuts if Bush had picked the hugging saint.

Maybe the hearing won't provide great theater—although the whole "dumbass" thing leads me to believe it still may. But then isn't mystery always great theater? And doesn't a team of intrepid Democrats attempting to figure out what lies behind John Roberts' handsome face sound like a heck of a detective story?

Was it Roberts with a lead pipe at the Federalist Convention? Shivers.

You say it just right, Cliff, when you state that this is a dance over what narrow class of questions may be asked; and what narrower class of questions will be answered. Everything important seems to be off the table. But how to determine what's important? Absent moral turpitude or dementia of some sort, what disqualifies someone as a good judge? Should a potential justice's ideology be fair game? That's the nut of it all, isn't it?

To my mind, this really has little to do with a candidate's ideology, or religion, or personal morality, and everything to do with whether those qualities interfere with one's ability to interpret the law. If one believes (as Roberts indicated at his last confirmation hearing) that settled law is not to be lightly disturbed, and that neither the law nor the contours of one's job can be subordinated to personal values, ideology really shouldn't matter at all. But if one feels that there is a higher law than the law of the land, and that to put the former first is either impossible or a sin, well, the public is entitled to know what alternate values system is being applied.

One of the reasons I admire Antonin Scalia is that his personal views usually map almost perfectly onto his jurisprudential theories. I generally agree with neither, but at least there is no question of which will rule the day.

If those hollowed-out words "activist judge" mean anything at all, Cliff, they must mean someone who privileges any values over the law itself. As you note, that often happens on both sides of the political spectrum. But I fear "Are you an activist judge?" is not going to generate a very useful discussion, even though, in the end, that question matters far more than politics or ideology.

Thanks to both of you for this fruitful discussion.

the breakfast table
entries
123456789
from: Dahlia Lithwick
to: Viet Dinh and Cliff Sloan

The Roberts Nomination: A Detective Story

Posted Friday, July 22, 2005, at 4:10 PM ET
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Viet Dinh is a law professor at Georgetown University and was assistant attorney general for legal policy during the Bush administration from 2001 to 2003. Dahlia Lithwick is a Slate senior editor. Cliff Sloan is an attorney in Washington, D.C.
Photograph of Judge John Roberts in Wednesday's entry by Chip Somodevilla/Getty Images.
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