August 30, 2005
By Richard Epstein
Steve continues to impress me with his detailed knowledge of the ins and outs of Washington politics. But at this point I think that the better analysis of the overall situation depends less on the small maneuvers and more on the overall level of buzz that the Roberts nomination has generated. On the former, I attach little weight to the fact that Senator Kennedy has appointed James Flug to his staff, even if the latter is a hard-line rejectionist of anyone to the right of the newly perceived O’Connor line. There are good reasons for taking a stand in order to rally the troops, even with only an off chance that the protest may pay off.
That said, the key point here is the lack of buzz and discussion that the Roberts nomination has generated. The New York Times reveals the level of desperation in the covert opposition when Adam Cohen decides to write yet again about that local toad that never goes outside California. There is no mileage in a wry opinion that tells more about the Roberts’s wit than his willingness to roll back the New Deal by constitutional means. And there is the odd piece by Jeff Rosen in the Sunday Magazine, which suggests that we quiz Roberts about his futuristic views on biotechnology. Before I abandoned Jeff’s efforts for an excellent Sunday crossword puzzle, I asked myself how you could get any traction by asking a nominee to opine on the biotechnology of frozen embryos when no one knows what form the technology will take in ten years—all in complete ignorance of the potential legal issues no less. Here is one time that a candidate can answer truthfully that “I have never thought of that issue, and would prudently wait until it presents itself in concrete form before making up my mind.”
So if this is where the rhetoric is, then the suspense will be injected into this entire affair only if Roberts jumps out of character and gratuitously takes a hard line position on some issue or other. That confrontation did of course surface in the Thomas hearing before sex drove it off the front page, and I was a mild casualty in the experience, as Steve notes. For those readers who did not see the incident, Senator Joseph Biden held a copy of my Takings book out to the then judge, Thomas, and asked quite simply why anyone who believed in that stuff should ever be appointed to the Supreme Court. The one answer that I do recall was, “but Senator Biden, there is a takings clause in the constitution,” to which I will add that it is one thing to invent rights as a matter of natural law, and quite another to use the natural law methodology to explicate a clause that is written into the constitution but has to be subject to a number of interpretive questions. Do you take property when you blow it up but don’t take title to the rubble? Can you take property to restrain a nuisance? Etc.
On that occasion I was asked discreetly by one of my former students, who was also an aide to Senator Biden, whether I would like to join the show by testifying before the committee on the takings clause. It was clearly an effort to get to Thomas through me, and I politely declined the invitation to speak. But I did offer Senator Biden an alternative: we could debate any and all issues in my Takings book, once the hearing concluded. I never heard back from him about participating in a disinterested inquiry for the truth. I would happily extend that same offer to Senators Kennedy, Leahy, or Schumer. But you won’t see me at the hearings. I have no idea what Roberts thinks about my view, nor do I for these purposes care. Roberts will have to stand on his own two feet. I am confident that he can. So rest easy, dear Stephen.
Posted at 01:53 PM
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