TCS Daily


No Solons, They

By Pejman Yousefzadeh - September 21, 2005 12:00 AM

By most accounts, John Roberts dazzled at his confirmation hearings this past week. The Washington Post endorsed Judge Roberts's confirmation and Post editorial writer David Broder called the Judge "obviously -- ridiculously -- well-equipped to lead government's third branch." Even Democratic Senator Charles Schumer -- who may yet vote against the Judge -- admitted that Judge Roberts's discussion and commentary before the Senate Judiciary Committee was a "tour de force" and that Judge Roberts "may very well possess the most powerful intellect of any person to come before the Senate for this position."

Too bad other participants in the hearings were not able to rise to the Judge's level. Some of his interlocutors were less-than-stellar in their questioning of him.

We had, for example, an exchange between Wisconsin Senator Herbert Kohl and Judge Roberts that consisted of having Senator Kohl ask what Judge Roberts, as Chief Justice, could do to make the lives of the people affected by Hurricane Katrina easier. No one objects to helping people in need, but it is amazing that Judge Roberts actually had to remind a sitting United States Senator of the functions of the judicial branch of the federal government:

        ROBERTS: Well, the courts are, of course, passive institutions. We hear 
        cases that are brought before us. We don't go out and bring cases. We 
        don't have the constitutional authority to execute the law. We don't have 
        the constitutional authority to make the law.

        Our obligation is to decide the cases that are presented. Now I'm confident, 
        just in the nature of things, that there will be cases presented arising out 
        of that horrible disaster, of all sorts. And many of those will be federal cases, 
        I'm sure. Others will be in the state courts.

        And again, the obligation of the federal judiciary and the state judiciary is 
        to make sure they provide a place where people can have their claims, their 
        litigation decided fairly and efficiently, according to the rule of law.

        That's the appropriate role for the judicial branch.

Of course, the only reason that Hurricane Katrina was brought into the discussion was for Democrats to score points off of perceived Administration bungling in the aftermath of the hurricane. Still, the attempted segue was so clumsy and so lacking in subtlety that it could not have helped but cause viewers to wonder about its relevance.

Of course, Senator Kohl was hardly done. We had the following exchange as well:

        KOHL: Judge, as we all know, you were originally nominated to replace the 
        first woman ever to sit on the Supreme Court, Sandra Day O'Connor. 
        There was a lot of speculation when she announced her requirement 
        that the president might choose a woman to replace her. And she even 
        suggested a little disappointment, not with you, but with the fact that a 
        woman was not chosen.

        Had the president told you that the selection was down to you and an equally 
        qualified woman for the post, but that he thought a woman was needed, would 
        you have seen that as a reasonable conclusion on his part?

        ROBERTS: I certainly think presidents have and will consider a broad range 
        of issues and characteristics and qualifications in selecting their nominees, 
        and that's certainly one for a president to consider.

        KOHL: All things being equal, in terms of qualifications, would you be pleased 
        if the president chose a woman to replace Sandra Day O'Connor?

        ROBERTS: The upcoming vacancy?

        KOHL: Yes.

        (LAUGHTER)

        ROBERTS: I just wanted to make clear we weren't talking about this one.

        (LAUGHTER)

        I don't think it's appropriate for me to comment in any way about the president's 
        future selections other than to say that I'm happy with his past ones.

        (LAUGHTER)

Again, what was the point of this discussion? Was Senator Kohl inviting Judge Roberts to express a lack of enthusiasm in being nominated to serve on the Supreme Court? Did he really think it proper for Judge Roberts to discuss who the President should nominate for Justice O'Connor's seat? How in any way did this exchange add value to the confirmation hearings?

Responding to Judge Roberts's opening day analogy between judges and baseball umpires, Senator Joe Biden tried to work in the rules defining the strike zone in baseball into some of his commentary. He got it horribly wrong. On more substantive issues, Biden fared little better. Repeatedly interrupting Judge Roberts as the latter sought to give answers to Senator Biden's questions, the Senator actually accused Judge Roberts of "filibustering" -- a prime example of senatorial chutzpah. Among other things, Senator Biden seemed to get confused regarding the standards of "strict scrutiny" and "heightened scrutiny" as applied to the specific issue of gender discrimination.

Of course, lest anyone believe it was only Democrats making ridiculous statements in the Committee hearings, it should be noted that Republicans had their share of "are you kidding me?!?!" moments. Committee Chairman Arlen Specter tried to argue that Roe v. Wade was "super-duper precedent." No. Seriously. He said that. And the contention -- along with the legal doctrine of "super-duper precedents" itself -- is an intellectual stretch to say the least. Senator Specter also appeared bound and determined to catalog the Supreme Court's decision in United States v. Morrison limiting the ability of Congress to enact legislation under the Commerce Clause as "denigrating" to Congress because the Court questioned Congress's fact-finding ability. Repeatedly pressing Judge Roberts to comment on the issues raised by Morrison, Senator Specter grew frustrated when the Judge declined, stating that similar cases might come before him in the future. Senator Specter argued that Judge Roberts was not likely to see a case with the fact patterns presented in Morrison, and pointed out that the case itself was settled. That much was true, but Senator Specter either forgot or chose not to remember that other cases involving the exercise of the commerce power could come before Judge Roberts in his capacity as Chief Justice and that as a result, Judge Roberts could not comment on the issue. (Of course, as law professor Ann Althouse points out, it may very well be that Senators like Arlen Specter avoided any discussion of the commerce power because they didn't want to invite Judge Roberts to opine that the exercise of the commerce power has been greatly abused.)

Perhaps the most bizarre moment in the hearings came at the end of Senator Tom Coburn's questions. Consider the following:

        . . . As you [referring to Judge Roberts] have been before our committee, 
        I've tried to use my medical skills of observation of body language to ascertain 
        your uncomfortableness and ill at ease with questions and responses.

        And I've honed that over about 23, 24 years. And the other thing that I believe 
        is integrity is at the basis of what we want in judges .

        And I will tell you that I am very pleased, both in my observational 
        capabilities as a physician to know that your answers have been honest and 
        forthright as I watch the rest of your body respond to the stress that you're 
        under. But I'm also pleased with our president that he's had the wisdom to 
        pick somebody of such stature and such integrity.

Isn't it nice to know that our Senators are human lie detectors now? Of course, it could just be another Foghorn Leghorn moment. But let's not think about that depressing possibility.

The author is a lawyer and TCS contributor. Find more of his writing here.

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