The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Throughout most of the impeachment trial, Chief Justice Roberts said little, and he did it very well. But at several junctures, when tested, Roberts handled himself with composure and poise. Consider a few examples.
First, Senator Elizabeth Warren posed a written question that was a not-too-thinly veiled criticism of the Chief. Roberts, without flinching, read the question aloud:
"At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?"
Roberts showed no visible reaction after reading the question. Ultimately, Warren's question may have backfired. Senator Murkowski may have voted against subpoenas in light of Warren's attack on the Chief. She explained, "It has also become clear some of my colleagues intend to further politicize this process, and drag the Supreme Court into the fray, while attacking the chief justice."
Had Murkowski voted to subpoena witnesses, the Senate would have split 50-50. Would Roberts have broken the tie? Senator Schumer posed this question in the form of a parliamentary inquiry. He asked if Roberts was aware that Chief Justice Chase cast two tie-breaking votes during the Johnson Impeachment trial
Roberts read from a prepared statement(my rough transcript):
I am Mr. Leader. The one concerned a motion to adjourn, the other concerned a motion to close deliberations. I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties. If the members of this body elected by the people and accountable to them divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government to assert the power to change that result so that the motion would succeed.
By the time Schumer had asked this question, the critical votes had already been cast. It is not clear why Schumer failed to pose this question earlier.
I hope, in due time, to address some of the responses that followed my New York Times op-ed. For now, I will flag an addendum co-blogger Keith Whittington graciously added to his post. I briefly explained how Alan Dershowitz went far, far beyond my position on mixed motives.
There is a simple, but important distinction between me and Dershowitz. In my view, an action taken with mixed motives–both personal political advantage and for promoting the general welfare–should not be considered an abuse of power. For Dershowitz, an action taken solely based on advancing personal political advantage cannot be an abuse of power, precisely because promoting personal politics is in the national interest.
Given the current schedule, the trial will likely draw to a close on Wednesday.