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July 21, 2009


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David Schraub

My understanding (which could be mistaken) was that the Bork hearings were more substantive, but that this was a deliberate strategy by Sen. Biden to discredit Bork. That is, by suckering Bork into acting like this was a law school symposium, Biden was able to draw out those facets of Bork's judicial ideology that were academically consistent but politically unpalatable, sinking the nomination.


I think you're right, David -- or so that's the story I've come to believe. And in that regard, maybe it's good from Judge Sotomayor's perspective that the hearings didn't devolve (or convert into?) a discussion of philosophies of judging, of the role that sentiment might play in deciding cases, of the ambiguity in precedent ... all the things that academics love. However, I think we missed an opportunity to have a serious discussion of things of some importance -- and to convey to the public what it is that judges do.

Playing safe defense makes sense in some situations; maybe this was one of those situations.

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