No One Can Succeed Like Dr. Roberts

Matt Welch | September 20, 2005

There was plenty of senatorial questioning to laugh about in John Roberts' confirmation hearings. For instance, this winner from Jeff Sessions (R-Ala.):

So let me ask you, if you were sitting here, what question would you ask John Roberts so that you or us could be sure that we weren't nominating what I call an ideologue, someone who you might define as somebody who wants to make law not interpret law? And then how would you answer the question you asked yourself?

And this surrealist passage from Lindsay Graham (R-S.C.):

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because...

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials?

But there was some substance, too. For my money, the most useful senator was Russ Feingold (D-Wisc.), who not only produced the only moment where Roberts stammered and seemed unsure of himself (during a section on whether the judge should have recused himself from Hamdan v. Rumsfeld), but made the most of his time to press the future Chief Justice on civil liberties and Executive Branch power. Here's one example:

FEINGOLD: But at what point did you start thinking about the implications of [9/11], in terms of civil liberties and the challenges this...

ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one.

The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace. I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended. [...]

FEINGOLD: Are there any elements of the government's response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

ROBERTS: I'm sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back as opposed to the particular demands of the moment and the perceived demands, I'm sure it's a different perspective. I hesitate to mention any in particular because so many of these issues are coming before not only the Supreme Court but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here. So I would hesitate to identify particular areas of concern.

FEINGOLD: I understand your caution. I don't think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions.

Comments

|9.20.05 @ 3:36PM|#

Considering it's already assured that Roberts will be confirmed, other than allowing Senators to grandstand, is there a point to this exercise? You seem to imply that there is, Mr. Welch, but I'm not sure Senator Feingold's questioning, insightful as it was, will make any difference in this confirmation or the one to follow.

|9.20.05 @ 3:46PM|#

jf,

Well, Roberts could have imploded under questioning. Nominees (at all positions of government) are known to sink themselves from time to time. There is also the Constitutional aspect of the Senate's "advice and consent" power.

|9.20.05 @ 4:02PM|#

Although a broken clock can be right twice a day, I don't find Feingold's (as in McCain-Feingold*) sudden love for the Bill Of Rights all that comforting.

*No, I don't care that those senile, old, fools ruled McCain-Feingold koesher. "Congress shall make no law..." MEANS CONGRESS SHALL MAKE NO LAW, MORONS!

|9.20.05 @ 4:05PM|#

Announcement of Gathering in the DC Area
This is a thread-jack. If you do not cooperate we will unleash the wrath of Allah on your server!....oh, wait, never mind.

Anyway, in light of how successful the other gatherings have been, Mr. Nice Guy and I are looking to have a gathering in the DC area, any weekend from Oct. 28 through mid-December.

Here's how it works:
-If you're interested, contact me. The address is real if you remove the part about spam.
-Let me know which weekends you can meet in the DC area. If you aren't sure of your schedule but want to be on the mailing list for the event, just send me an email and I'll keep you in the loop.
-Most popular weekend wins.
-I'm fairly new to the area, so if you have a suggested venue, preferably near a Metro stop, let me know that too.

I'm thinking an evening, preferably a Saturday, but whatever time works for the most people is what we'll do. Mr. Nice Guy and I will try to organize a trip to the shooting range (in Maryland, not DC, obviously) in the afternoon before the event for those who are interested. Both of us live near Metro stations and can probably take in somebody who wants to crash.

Also, Smacky is coming to DC for a wedding Oct. 14-16. I'm busy that weekend, her schedule with the wedding is kind of busy, and I figure that the shorter notice might not work for those wanting to come from out of town, but if somebody is interested in putting something together, you might want to get in touch with her and see who else is interested.

|9.20.05 @ 4:06PM|#

I think his refusal to answer questions about so many subjects/topics (even cases that have been ruled on by the court) even in vague or general terms (beacuse they may at some point ever come before the court) coupled with the administration's refusal to turn over documents Roberts wrote while Solicitor General general should be grounds for a filibuster. So going through these motions in order to justify the use of a filibuster would in fact make a difference.

I don't think it will happen in this particular case, but theoretically speaking, these hearings could be useful for that.

On a side note, is it just me, or have the proceedings taken on the appearance of the senate has to justify rejecting a candidate rather than a candidate needing to justify/prove why they deserve to be a Justice? I always thought that these proceedings were to give the candidate an opportunity to prove that he or she belongs on the SC not the other way around.

|9.20.05 @ 4:16PM|#

Say, thoreau, don't guys want to come over to Europe? Not only could you indulge in all sorts of things tolerated by the local police, you could do some much-needed libertarian missionary work.

|9.20.05 @ 4:21PM|#

I really ought to tape my congressional sessions (pun intended), market the tape as "Senators gone Insane" and then make millions (or no money whatsoever)

|9.20.05 @ 4:34PM|#

"Considering it's already assured that Roberts will be confirmed, other than allowing Senators to grandstand, is there a point to this exercise?"

Seeing a Republican challenged on the judicial/constitutional beliefs that are points of disagreement between the two parties. Such a spectacle provides important information for future presidential elections.

And while I can respect Roberts' unwillingness to discuss cases before the court, or that will likely be before the court, the White House should have kept this constraint in mind, and either nominated someone with a judicial history longer than the lifespan of a fruit fly, or released his memoranda from his time as a federal lawyer.

|9.20.05 @ 4:45PM|#

And while I can respect Roberts' unwillingness to discuss cases before the court

It's one thing not to discuss cases before the court, but he wont even discuss cases that the court ruled on, or for that matter any case that MAY come before the court (should we add psychic to the list of Roberts' qualifications??). Why not? There is no reason that he or any other judge can't say publicly whether they believe a specific case was decided correctly or if they agree with the principles on which it was decided. That's what judges do. Every other justice on the bench has commented in some way or another and the public knows where they stand. (Whether its been by penning an opinion/dissent or by signing on to them) yet we still believe that they will keep an open mind the next time a similar issue comes before the court. But for some reason we are expected to believe that John Roberts will not be able to keep an open mind if he tells the Senate where he actually stands on issues about which virtually every American has an opinion

|9.20.05 @ 4:54PM|#

Seeing a Republican challenged on the judicial/constitutional beliefs that are points of disagreement between the two parties. Such a spectacle provides important information for future presidential elections.

Good point, although I doubt the framers had Presidential elections in mind when they gave the Senate the power to "advise and consent". Actually, I think Hakluyt's "implosion" theory is a good point as well, although Roberts seems to be far too cool a customer for that.

R C Dean|9.20.05 @ 6:21PM|#

I think his refusal to answer questions about so many subjects/topics (even cases that have been ruled on by the court) even in vague or general terms (beacuse they may at some point ever come before the court)

Just like every nominee. . . .

coupled with the administration's refusal to turn over documents Roberts wrote while Solicitor General general

Just like every administration . . .

should be grounds for a filibuster.

Sounds like a recipe for a lot of filibusters.

I happen to think that refusing to turn over internal legal memos is exactly the right thing to do, but that may be because I am a lawyer and have an allergy to waiving the attorney-client privilege.

As for commenting in advance on cases - well, for some issues that is appropriate. As for refusing to critique or discuss cases already decided, that is asinine.

Phil|9.20.05 @ 6:52PM|#

I happen to think that refusing to turn over internal legal memos is exactly the right thing to do, but that may be because I am a lawyer and have an allergy to waiving the attorney-client privilege.

Er . . . as Solicitor General, wasn't his client, well, us?

|9.20.05 @ 7:43PM|#

Er . . . as Solicitor General, wasn't his client, well, us?

Nope. His client was the U.S., which is sadly a distinct entity from you and I.

|9.20.05 @ 8:24PM|#

R C : THe Solicitor General works for the government, so I don't see how that privelage can be invoked to refuse documents to the Senate. As a lawyer I would assume you would understand this.


Further, every administration has not been so secretive and so protective of their nominees work/history.

And I don't recall too many nominees that stonewalled the way Roberts has and refused to answer about SETTLED CASES or offer even platitutes about topics that MAY ever come before the court.

But when one is shilling, I guess facts don't reall matter.

|9.20.05 @ 8:25PM|#

platitutes = platitudes
reall = really

preview preview preview

|9.20.05 @ 9:17PM|#

"I happen to think that refusing to turn over internal legal memos is exactly the right thing to do, but that may be because I am a lawyer and have an allergy to waiving the attorney-client privilege."

Just to be clear, I understand and respect lawyers' commitment to the attorney-client privilege. The refusal to waive it lies entirely with the client (technically the USA, but in practical terms, George Bush), and doesn't in any way reflect badly on Judge Roberts himself.

But I think ChicagoTom has a point, and Roberts is being waaaayyyyyyy too coy. "Could conceivably come before the court at some future time" is much too broad a standard.

|9.20.05 @ 11:15PM|#

In our litigious society just about ANYTHING could come before a court some day.

I haven't read the transcripts of the hearings, but I can think of a good approach and a bad approach to questions about possible future cases: (I'll write these in the layman's language that I speak, since I'm not a lawyer. I'm sure the lawyers would phrase it differently.)

Good: "How I would rule on an actual case would obviously depend on the specifics of the law in question and the facts of the case. But, in the hypothetical situation that you describe, the salient issue would seem to be such-and-such, and the applicable precedents would seem to be this and that. In my own legal practice I've encountered a few cases similar to that..."

Bad: "Since there's always the possibility that somebody, somewhere, might some day file suit over it, I must refrain from discussing the case of Tastes Great v. Less Filling."

Yeah, I know, real answers will be somewhere between those two extremes.

raymond|9.21.05 @ 12:36AM|#

Wisconsin: the most civilised State in the Union.

|9.21.05 @ 1:09AM|#

schumer made the first comment, not sessions, though admittedly both are retarded

|9.21.05 @ 1:10AM|#

schumer made the first comment, not sessions, though both senators are retards