Professor Berman aptly (and frustratingly notes) the Senate Judiciary Committee's failing to ask John Roberts any sentencing-related questions. I share Berman's frustration. Then again, the entire premise of this blog is irrelevant, so I'm used to being frustrated.
After all, liberals like to complain about two things: 1) the federalism non-revolution and 2) how unfair it is that blacks bear the burden of the criminal justice system. Could it be that a real federalism revolution (Lopez and Jones were criminal cases, after all, and Raich concerned a criminal statute) might help minorities?
Could it be that a narrow application of the Commerce Clause might help, in addition to harm, the "little guy"? Given that some will be helped and others hurt (and given that Senate Democrats care nothing about judicial processes but instead care only about results), wouldn't a productive dialogue, where we would weigh and balance the good and bad that might stem from a federalism revolution be in order? Nope. "Shut up, Mike. You just hate the 'little guy!'"
Also, not once did qualified immunity come up. Will John Roberts be a Hope v. Pelzer or Groh v. Ramirez Justice? (I think neither, but still, I wanted someone to ask!)