Ken Karst on Judge Roberts:

My colleague Ken Karst -- one of the nation's foremost constitutional scholars, a solid liberal, and as it happens my free speech law teacher -- e-mailed this to some colleagues; I asked him whether I could blog it, and he graciously agreed:

From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:57 AM
To: . . .
Subject: FW: Judge Roberts

In case anyone cares, here's a note I sent in response to a query from a member of the ABA's committee on the federal judiciary. Think of this as a one-time mini-blog.


-----Original Message-----
From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:37 AM
To: . . .
Subject: Judge Roberts

Dear Mr. Marshall,

Thanks for your letter asking for my views on the nomination of Judge Roberts to the Supreme Court. Alas, I have nothing useful to say about his history. I don't know Judge Roberts, nor have I seen him in action as an attorney or a judge. All I know about him, I have read in the press.

However, ignorance rarely prevents one from having a view, and I do have one. I am one of those liberal law academics whom Justice Scalia sometimes blames for the Supreme Court's straying from the True Path. Even so, I believe the Senate should confirm Judge Roberts's nomination. By all accounts, he is a first-rate lawyer, who listens carefully to arguments, even when they go against his initial inclinations. He seems to me to be a true conservative, who sees the judicial role as one in which courts conserve. I don't expect to agree with all his decisions, even on matters of intense controversy. I should compare him to the second Justice Harlan--with whom I often disagreed, but whom I still consider an excellent Justice.

Even though I have nothing to offer except opinion, I am grateful that you had me on your list, and I wish you and your ABA colleagues well in your deliberations.


Ken Karst

Guest (mail):
I don't expect to agree with all his decisions, even on matters of intense controversy.

Given the context (the writer's liberal, while Judge Roberts is conservative), shouldn't he have said something like, "I don't expect to agree with all his decisions, especially on matters of intense controversy"? (Otherwise, I agree with Prof. Karst's assessment.)
8.5.2005 2:07pm
Greedy Clerk (mail):
Karst is a class act. [***Remainder removed by Volokh on grounds of rudeness. Folks, please abide by the rules noted at the end of the comments.***]
8.5.2005 2:14pm
John Jenkins (mail):
Honorable disagreement? Honest assessment of one's ideological opponents? What's wrong with American politics today when we can't have vile, vituperative denunciations of those with whom we disagree? This civility thing has gone *too* far.
8.5.2005 3:45pm
Greedy Clerk (mail):
I'll stop commenting here then -- if Lindgren can make an outrageously rude libelous statement labelling all liberals as close-minded, there seems to be a little double standard --- especially when he never opens his posts up for comments (I wonder why).

[***Volokh writes: I was tempted to remove the repetition of the rudeness, on the obvious grounds, but I'll leave Mr. Greedy Clerk with his last word on this.***]
8.5.2005 3:51pm
cfw (mail):
Karst seems a bit thin here, though I would agree that it would be a shame not to have Roberts make the transition (barring any unforeseen skeletons in the closet).

Any thoughts on the justice of inquiring into how R came to have two adopted blonds from Latin America? Privacy rights that concern me most are those of the birth parents. R seems to have made it clear to the world and his family that the children are adopted. Adoption is a noble thing in my mind, reflecting credit on R. (My work for adopting parents on a legal aid basis is some of the most satisfying I have ever done - nothing like creating a family as a lawyer.)

Is it invading the privacy of the children of R to note they are adopted? Probably not, since that fact has not been treated as a secret by R.

Is it ok for the NYT to ask if this was a private or public agency adoption? I suppose so - adoption is supposed to be set up to sithstand such inquiries.

If it was private, is it fair to ask what sort of court approval, if any, was obtained in Latin America or the US? Is it fair to ask if this was somehow a situation of "over the line" private adoption (bidding for babies)? I am not familiar enough with private adoptions (though my extended family has been through three adoptions)to say there are no reasonably disqualifying facts that anyone could possibly discover.

From what I have seen about R and his wife to date, their processes unfolded transparently and with scrupulous observance of all legal formalities.
8.5.2005 5:31pm
Grumpy Old Man (mail) (www):
Ken Karst was one of my favorite law professors, back in Hammurabi's day. He taught not only Con Law, but my favorite (I was a sick person even then), Federal Jurisdiction, supposedly known at Harvard Law as "Darkness at Noon."

I'd expect nothing less than a fair-minded assessment from Ken, who truly is a "gentleman and a scholar." Whether a judge of good whisky, the third attribute in the cliché, I know not.

This letter shows that civility in our public discourse is not dead. Just twitching in agony on the floor of a bombed-out subway car.
8.6.2005 9:00am