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Public Law Librarians Consulted by Supreme Court Nominee on Eve of Judiciary Committee Hearings


(Not really, but anything is possible in the wild, wacky world of Senate Judicial Committee nominations, so give this post an April First dateline.)

Supreme Court nominees and their (judicial hearing) handlers are mere amateurs when compared to public law librarians who are masters at Answering a Question without Answering the Question.

This is a skill we practice every day, in every way, unlike legislators and judges who are required to give their opinions day in and day out and have a devil of a time not telling people where to go, what to do, and What the Law Is.

Collectively, public law librarians are asked hundreds of thousands of questions about the law every year and each and every time we state some variation on these themes:

Question: “What is your opinion of x?
Librarian: “Librarians (judicial nominees) must serve all parties to a dispute and, therefore, must remain neutral in order to give everyone the full benefit of our knowledge and experience.” (We strive to be the “fair witness” of the legal world, which is why we are pretty good jurors, too.)

Question: “What is the law of x?”
Librarian: “I don’t know the answer to your question, but I can show you how to research it” or “if you read only what is written in the statutes, the cases, and the constitutions you will be absolutely wrong about what the law is.”

Question: “What is the law of x
Librarian: “It depends. [Repeat as needed.] The law may not be settled; many only appear to be final, but they are not. May I show you research materials that support a variety of possible responses to your question? You will need to decide which ones apply to the specific situation you describe.”

Question: “What would you do if you were faced with this x situation?”
Librarian: “Each person’s situation is unique” (See also, above, re librarian fairness and neutrality.) (Sometimes you may need to make this a personal response. “Aren’t you unique? If your neighbor (spouse, employer, etc.) asked this same question, wouldn’t s/he deserve a personal and unique response? You will need to talk to a lawyer who can advise you based on your specific situation (set of facts).”)

Clearly, this sort of Q & A would make for a very dull hearing, but isn’t that the point? (Banking was supposed to be boring too – and then it wasn’t, unfortunately.) Supreme Court nominees have to tread carefully when using the hearing as a “teachable moment,” but it is abundantly clear that some non-lawyer Senators, and even a few lawyer-Senators could use a few lessons in judicial law-making.

(You can also read my post “Judges Don’t Make Law?” (prompted by the last Senate Judiciary Committee Supreme Court nominee hearings) at the LLOPsCited blog, where I guest-blogged this week.)

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