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Here's the most recent example: The Post reports that inJohn Roberts sent a memo to Sandra Day O'Connor advising her to plead the 5th if asked about her views on legal questions. Roberts warned that answering questions would raise the "appearance of impropriety" and prejudice her views in future cases before the Court.
In a few weeks, thousands of first-years will raise their hands for the first time in Civil Procedure class and begin compromising their futures as blank-slate Supreme Court justices.
Pity the 1-L who shows up unprepared for class and tries to convince the professor that answering any questions would raise an "appearance of impropriety. What an odd and, in my view, inapt comparison.
Yes, I realize that it's supposed to be funny or witty, but I take it that it's also intended to make a serious point. To begin with, if you really want to play out the analogy, it seems to me that any law students would be entirely within his rights not to express his views about certain subjects.
The student must be able to make arguments about those subjects, and understand others' arguments. But if I ask a student what he thinks about Roe v. Wade, a student tells me "I'd rather not express my views about abortion, but here are the arguments for the decision and here are the arguments against it," I would gladly accept such an answer.
In fact, I think it would be unethical for me to insist that a student reveal his own views in such a context, since such a revelation would be quite burdensome on his privacy, and would give very little pedagogical benefit. It's sometimes useful to know a student's views, for instance when I deliberately try to get students to argue against their own views, but this utility is in my view outweighed by the student's privacy.
Of course, Senators understandably care about nominees' personal views on legal questions, though professors generally don't and shouldn't care about their students' views on legal questions.
But that just highlights the inaptness of the analogy between questions asked of nominees and questions asked of students. Students are asked questions to gauge their knowledge; nominees are asked questions to predict how they will vote.
And of course an "appearance of impropriety" response from a student is silly for the simple reason that the student's answer won't create an appearance of impropriety. On the other hand, as I argued in more detail here — and as lots of people have said, and Mr.
Reed must surely have heard — there is at least a plausible argument that a nominee's expressions of his views at confirmation hearings may indeed improperly constrain him in the future: Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion.
Now one can surely argue that, despite this risk, the nominee should be required to express his views, because the representatives of the people are entitled to consider those views when deciding whether to give him a position of great power.
Reed's misplaced law school analogy, it seems to me, does nothing to advance this argument.Jul 10, · 6 College Essay Topics By Lynn O'Shaughnessy on July 9, in Admissions, Applying If you (or your child) is a rising senior, now is a good time to get started on the dreaded college essay.
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Developed by: W. Huitt Last updated: November FSU, designated a preeminent university in the state of Florida, is one of the most respected research and learning institutions in the country. I’ve gotten interested lately in making a study of velocity expectations for college-bound pitchers.
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