Good Fun, if the Stakes Weren't So High

Listening to the confirmation hearing of a Chief Justice of the Supreme Court is something you can do only once or twice in a lifetime, and I have to admit I'm enjoying it immensely. Yes, it's a Kabuki dance, but a good one. Roberts is a strong candidate on many dimensions - he is obviously bright, articulate, has a restrained personal demeanor, and even the Democrats give him credit for his incisive legal mind.

Not that I'd vote for him, since he thinks the Constitution allows the mandatory arrest of 12 year-old girls for trivial offenses. It's quite an opinion - I especially like the part about the plaintiff having no standing since she's unlikely to be arrested again and therefore would not be again exposed to the policies objected to in the litigation. A masterpiece of compassionate conservatism - "sorry little girl, but the Police can do that whenever they want." Carefully footnoted, of course.

I also wouldn't touch him with a ten foot pole because of his evident love of executive power. (Clinton was going to hire him to argue for executive privilege when his personal lawsuit vs. Paula Jones went before the Supremes in the 9o's). Democrats who are worried about abortion with this guy aren't thinking big enough - worry about Democracy.

Anyway, here is a great exchange from today with Schumer, who is nobody's fool:

SCHUMER: But let me ask you a few other questions here because I think you're cutting back a little on what you said yesterday, at least, if you look at the whole picture here and your unwillingness to disagree with Justice Thomas.

But let me ask you this about judges in general. You sit on a court, correct?

ROBERTS: Yes.

SCHUMER: OK. And sometimes you dissent. And that's routine, not just for you but for every judge.

ROBERTS: It's rare on our court, I'm happy to say.

SCHUMER: Yes, it is. It is. That is true. I've noticed that. But it happens in courts all the time.

OK. And in doing so, the dissenting judge is criticizing the majority opinion, right? Disagreeing with it? And I take it this happens on the Supreme Court quite often? And, in fact, there aren't that many unanimous Supreme Court cases on major cases these days.

ROBERTS: Actually, one point that statistics always show that more cases were unanimous than anything else.

SCHUMER: But there are a lot of dissenting...

ROBERTS: There are a lot.

SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?

Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?

ROBERTS: Yes.

SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?

ROBERTS: I agree with that. Yes.

SCHUMER: And you did this occasionally when you were in private practice?

ROBERTS: Yes.

SCHUMER: OK. Nothing unseemingly about that?

ROBERTS: No.

SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.

And that's part of being a good lawyer.

And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?

ROBERTS: On occasion, yes.

SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, Roe was wrongly decided and should be overturned, unquote. Right?

ROBERTS: Yes.

SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.

You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.

And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.

Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, check your views at the door.

So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance.

What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?

In each case, they have to state their opinion. They have to do it as part of their job, if you will -- writing a brief, rendering an opinion, writing an article.

In each case, they're stating their views, which might bias them. You've done it.

Yet, only here you can't state your views. If the argument -- and, by the way, there's a very god countervailing reason that you should state your views, because, as the founding fathers so constructed, this is the one time you go before an elected body before a lifetime appointment.

And it seems to me this is something of an argument of convenience. Senator Specter said it well. He said you'll answer as many questions as you have to to get confirmed. That may be the actual fact, but it's not the right thing to do, in my judgment.

And so, please tell us why is the bias, why is the fact that you have already stated an opinion, any different when you sit in this room in terms of jeopardizing your future as a judge than it is when you're doing all these other things that you've done?

(This goes on for another 10 minutes or so, with Roberts occasionally responding to Schumer's rhetorical questions.)

ROBERTS: The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences.

The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion.

And in my experience, every one of those stages can cause you to change your view.

The view you ask then of me, Well, what do you think, is it correct or not? or How would you come out? That's not a result of that process. And that's why I shouldn't respond to those types of questions.

Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process.

It is not a process under which senators get to say, I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you.

That's not a bargaining process.

Judges are not politicians. They cannot promise to do certain things in exchange for votes.

And if you go back and look at the transcripts, Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach.

I have taken what I think is a more pragmatic approach and said, if I don't think that's likely to come before the court, I will comment on it.