Bullet Point Arguments on Senator Hatch’s Opening Statement on the Roberts’ Nomination

Here are some bullet points arguments on Senator Orrin Hatch’s statement today:

Judicial Philosophy and the Marshall Nomination:

· When Thurgood Marshall was nominated to the Supreme Court in 1967, Kennedy said that senators ­ as part of our Constitutional duty to advise and consent – should not reject a nominee because they don¹t agree with him on every issue.

· Kennedy did not say we should never consider judicial philosophy during the confirmation process. This is particularly important today because the President has made it clear that judicial philosophy is an important criterion in choosing his nominees.

· If judicial philosophy is important to the White House in selecting a nominee, then the Senate is entitled to consider it during the confirmation process to determine if the nominee will uphold basic rights important to the American people.

Lack of Public Record:

· No one expects the nominee to answer questions related to how he would rule in a particular case, or to make any promises regarding decisions in upcoming matters before the Court.

· However, the nominee should expect to answer questions about important legal principles, just as Justices Ginsburg and Breyer did during their confirmation hearings. The American people deserve to know the answers to these questions, and it is the responsibility of this Committee to elicit those legal views.

· Unlike previous nominations, including that of Justice Ginsburg, Judge Roberts has spent only two years on the DC Circuit Court and has written relatively few opinions. The American people and members of the Senate know little of Judge Roberts¹ views on a wide range of important issues. For this reason, it is important for Judge Roberts to provide the Committee with clear answers to ensure he will uphold the Constitution and the law.

Current Justice¹s Quotes On Prospective Judge Statements

· We have never expected a judicial candidate to come to the bench without any preconceptions on the law.

· As Justice Scalia recognized in his Republican Party of Minnesota opinion, ³A judge¹s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. . . [I]t is virtually impossible to find a judge who does not have preconceptions about the law.²

· Justice Scalia recognized that ³[b[efore they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. More common still is a judge¹s confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication–in classes that they conduct, and in books and speeches.²

· As then-Justice Rehnquist recognized in his Laird v. Tatum opinion, ³Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions which would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice¹s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.²

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