Last week's lengthy confirmation hearings for Supreme Court nominee John Roberts revealed to the American people at least one important fact about the constitutional separation of powers: Sen. Tom Coburn (R-Okla.) is stark raving mad.
"When I ponder our country and its greatness, its weaknesses, its potential, my heart aches for less divisiveness, less polarization, less finger-pointing, less bitterness, less mindless partisanship which, at times, sounds almost hateful to the ear of Americans," Coburn said in his opening statement. Then he choked back sobs. (All quotations are taken verbatim from the hearing transcripts.)
Dr. Coburn—whose idea of bipartisan unity includes but is not limited to praising Fidel Castro's AIDS prisons, railing against "rampant lesbianism" in public schools, and showing anti-STD gross-out films in the World's Greatest Deliberative Body—was not close to being done. He used the Senate's famous "advise and consent" function to ask whether Roberts does indeed "agree that the opposite of being dead is being alive?," to confess that " I remember what I was like when I was 25, and it wasn't very pretty," and to embarrass his own party's nominee by pressing him (without success, mercifully) to "teach the American public" that the Constitution "came from" God. And still he wasn't done.
"I just have one other comment," the Oklahoma Senator said. "As you 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."
Senatorial lunacy during the confirmation hearings was by no means limited to Coburn or the Republican Party. When they weren't sobbing about partisanship (or engaging in droningly repetitive examples of partisanship, by squabbling endlessly over which Senator said what to which justice about controversial cases like Roe v. Wade), the people's champions asked questions which have as much relevance to a Supreme Court justice's purview as a fish does to a bicycle.
Sen. Herb Kohl (D-Wisc.) asked Roberts, "what role would you play in making right the wrongs revealed by Katrina?" Utah Republican Orrin Hatch wanted to know, "What is the best way for our society to protect ourselves against terrorists not affiliated with a nation-state, wear no uniforms and really secret themselves in ways that have never been done before?" Delaware Democrat Joseph Biden, doing his best Jerry Brown impersonation, was a human non-sequitur machine, dishing out such classics as "So, as Chris Matthews said, 'Let's play baseball here,'" and "Well, I hope you don't still hold that view, man." And South Carolina Senator Lindsay Graham could not stop asking questions about the pressing jurisprudential issue of the 40th president.
"Were you proud to work for Ronald Reagan?" Graham wanted to know? Also, what did Ronald Reagan think about school prayer? At one point Graham went so far afield he had to reel his own self back in.
"You were picked by a conservative president because you have associated yourself with the conservative administrations in the past, advising conservative presidents about conservative policies. And there's another selection to be made, and you're going to get the same type person. And you can—I'm not even talking to you now."
This is not to suggest that there weren't substantive and pressing national issues discussed last week—there were. Interestingly, though, many of them had to do with Congress' own power, and lingering sense of grievance that the recent Supreme Court has—horrors!—ruled on a couple of occasions that that power isn't limitless. Judiciary Committee Chair Arlen Specter (R-Pa.) came out of the gate swinging not on expansions of Executive Branch authority, or eroding Court support for the First and Fifth Amendments, but on the Commerce Clause:
"I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the court. I am concerned about what I bluntly say is the denigration by the court of congressional authority."
More than half of the committee repeatedly hammered away on this one topic, while the Second Amendment received just one brief back-and-forth from Wisconsin Democrat Russ Feingold. Unfortunately for those of us who fervently wish that Senators like these would have less power rather than a blank constitutional check, after four days of haranguing Roberts indicated that he'd err on the side of Congress' ability to do whatever it wants:
SCHUMER: Do you believe Congress deserves a great deal—this is in reference to some of the things Senator Specter talked about—that Congress deserves a great deal of deference when it decides something is commercial and has finding to that effect?
ROBERTS: I do, Senator. And I think that is the basic theme that runs through the court's commerce clause jurisprudence.
There is, again, of course, the Lopez and Morrison decisions. But there's also the Raich decision. And again, I think it's very important—and what the Raich decision said you've got to consider Lopez and Morrison in the context of this broad sweep, not just as sort of the only decisions.
SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress', through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn't pass over state lines; you could somehow do it without doing any of that.
Under the commerce clause, can Congress pass a law banning even noncommercial cloning?
ROBERTS: I appreciate it's a hypothetical, and you will as well, so I don't mean to be giving bindings opinions.
But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce.
Obviously if you were successful in cloning an animal, that's not going to be simply a local phenomenon. That's going to be something people are going to…
SCHUMER: We can leave it at that. That's a good answer, as far as I am concerned.
And that's a bad omen, as far as I'm concerned.
Associate Editor Matt Welch is a columnist for Canada's National Post. His work is archived at mattwelch.com, where he also blogs.