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September 15, 2005

Assailing the lack of criminal justice questions at the Roberts hearing

The Senate Judiciary Committee's questioning of Judge Roberts concluded this morning, and there was another small criminal justice interlude.  Senator Feingold asked a few questions about habeas corpus, though there were no surprising revelations and the focus again was on the risk of wrongful convictions. 

The broader theme of the hearings, noted before here and here, remained the same: no Senator on either side of the aisle was willing to give serious attention to a range of important criminal justice issues. By my rough calculation, Judge Roberts endured nearly 25 hours of Q & A, and only about 30 minutes of all this time covered traditional criminal law topics.  And nearly all of that limited time was focused on the topic of wrongful convictions.

I suppose I am not surprised by this profound disinterest in the criminal justice system. But I consider the failure to explore with a potential Chief Justice of the United States issues relating to police practices, crime and punishment, to be a very serious failing by the Senate Judiciary Committee. 


  • as I noted here yesterday, nearly half of the Supreme Court's docket involves criminal cases or related issues;

  • depending on how you count, arguably more than half of the provisions of the Bill of Rights are concerned primarily with limiting the criminal enforcement powers of the government;

  • by at least one measure (the rate of imprisonment), the United States has the largest criminal justice system in the world;

  • with millions of crimes committed and over a million felonies prosecuted every year (as well as over two million persons behind bars and seven million persons currently under criminal justice supervision), crime and punishment issues have a profound scope in the United States and have a profound impact on Americans' day-to-day lives;

  • a broad range of issues relating to the structure of the government and to civil rights and civil liberties — ranging from racial justice to federalism from the right to privacy to the separation of powers from the right to vote to the role of juries — have a unique impact and import in the context of the criminal justice system.

The confirmation hearings for Judge Roberts have been discussed by many as a "national civics lesson."  But a more accurate title might be a "national civil law lesson," since less than 2% of the questioning was focused on criminal justice issues that occupy 50% of the work of the Supreme Court.

September 15, 2005 at 12:16 PM | Permalink


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» Half the Sup.Ct. Docket Unimportant to Senate from Injustice Anywhere . . .
I share Professor Berman's disappointment in the failure of any of the senators on the Judiciary Committee to ask substantial and meaningful questions about criminal law of Chief Justice nominee John Roberts. [Read More]

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Beginning Monday, the 10 Republicans and eight Democrats on the Senate Judiciary Committee will hold [Read More]

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» Roberts v. criminal law from Descriptive Epistemology
Sentencing Law and Policy: Assailing the lack of criminal justice questions at the Roberts hearing The Senate Judiciary Committee's questioning of Judge Roberts concluded this morning, and there was another small criminal justice interlude. Senator Fei... [Read More]

Tracked on Sep 16, 2005 2:52:09 AM


I was dismayed too by the lack of meaningful criminal defense questions. I think the court's criminal docket can only increase so what we don't know about his positions could be a problem.

On the other hand, at one point in the hearings yesterday, Roberts was asked repeatedly if he agreed with Scalia on a given case or cases actually. (I don't remember what the topic was). Roberts did not answer, but Mrs. Roberts was smiling very big in the camera shot as if to say, "he can't tell you but my smile will tell you yes". I take that as a good sign. Who knows? Maybe he would be in the Scalia-managed "Blakely/Booker merits Bloc" of the Court.

Jeremy M., crim defense lawyer

Posted by: Jeremy M. | Sep 15, 2005 12:29:45 PM


It must be nice to be an optimist. I have been around too long. On balance, CJ Roberts is not going to work out well for the defense bar.

Posted by: sigh | Sep 15, 2005 5:59:15 PM

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Posted by: | Oct 14, 2008 9:28:34 PM

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