Dershowitz, Fried, Fallon: Federalist Society Event Focuses on Confirmation Process


Federalist Society Panel

On Tuesday, during the Senate confirmation hearings of Judge John Roberts, HLS faculty discussed the nature of the confirmation process in the Federalist Society’s first speakers event of the year. Students packed the Langdell North classroom, where the standing-room only crowd of over 180 heard Professors Dershowitz, Fallon, and Fried engage in a lively, one-hour exchange entitled “Judging John Roberts: What’s the Proper Role of the Senate in Supreme Court Nominations?”

All seemed to agree that the confirmation process is a political one, which is not necessarily a bad thing. Professor Fallon argued that confirmation hearings are “appropriately political.” According to Professor Dershowitz, this has in some ways resulted in a process “skewed by special interest groups” in which the concerns of the disenfranchised are virtually shut out.

Professor Fried agreed that the process is political but cautioned that such a view obscures the fact that a certain practice has developed for the confirmation of Supreme Court nominees. There is a “practice of accommodation,” Fried argued, in which Senators are disciplined by the knowledge that “what goes around comes around” just as in most other areas of congressional business.

All agreed that Senators are entitled to ask whatever questions they wish, including those about the nominee’s ideology. Professor Fried injected the wisdom of his mother, who counseled that there is “no such thing as indiscreet questions, there are only indiscreet answers.”

Dershowitz endorsed the idea of nominees being completely forthcoming, as he “want[s] to know how a court will decide.” He related a story from his clerkship with Justice Arthur Goldberg, who asked Dershowitz to write a memo about how to outlaw the death penalty, despite the absence of such a case on the court’s docket.

Fallon echoed those sentiments, and drew some laughter, by stating that a “judge with an open mind isn’t a judge with an empty mind” and it’s a “charade” to think that judges do not come to the court with their own views on a host of issues.

Fried, while agreeing that judges have personal leanings, believes that nominees like Roberts who claim to have an open mind are being genuine, and that litigants deserve the hope of being able to move the judge through argument. Fried referred to Abraham Lincoln’s statement that we “should despise” a judge who reveals beforehand how he would decide a case.

One of the reasons that confirmation hearings are such high-stakes affairs is that members of the federal judiciary enjoy lifetime appointments. Dershowitz and Fallon agreed that term limits would be desirable. Fried, however, would not endorse that view, partly because of his “inherent conservatism” which counsels against changing things that have served us well for many decades.

In one of the many lighter moments during the panel, all agreed that if he were nominated for any government post, Professor Dershowitz would not be confirmed by the Senate.

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