On Saturday morning, the VBA meeting in Williamsburg featured a high-powered panel discussion including Judge Robert Bork, Slate writer Dahlia Lithwick, a district judge from Massachusetts, some guy named Bert, and two ex-William & Mary Law professors, Gerhardt and Smolla.
The topic formally was the Separation of Powers, which centered on three ideas: (1) the confirmation process for Supreme Court nominees is largely unsatisfactory, with the system that encourages the nominee to make himself "as small a target as possible," (2) the Schiavo case represents the new extreme in how far the Congress goes to interfere with the judiciary, and (3) the Supreme Court, at least according to Judge Bork, routinely oversteps its bounds in decision-making about social issues.
In other kinds of cases, the judge noted, the litigants can expect a "square, lawyer-like response," but in cases involving social issues the Court goes too far.
Regarding the Alito hearings, Ms. Lithwick said: "watching smart people talk about trivial things badly is depressing."
Professor Gerhardt noted that he was one of the law professor witnesses at the Alito hearings. I saw him on the C-SPAN morning call-in show that same week, and among other things, he refused to say whether he was for or against Judge Alito's nomination. His non-committal response made me think of Professor Tribe's explanation to Senator Specter (contained in this part of the transcript) about how it was that he was not there to testify against Judge Alito:
"SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?
TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.
SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?
TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation."
Bert Brandenburg is executive director of Justice at Stake, which has a website including this list of blogs.