September 15, 2005

CONfirmation hearings

I'm growing increasingly frustrated with the Roberts hearings--both with Roberts's flinty refusal to talk about anything that might matter and with the Democrats' ridiculous questions. (Slate has a pretty good piece that writhes with disgust.)

But most of all, I'm frustrated with what these confirmation hearings make all too clear--the Democrats' increasing propensity to play for small potatoes.

Seriously, what is the point of these hearings--what is Schumer & Co.'s goal in their questioning? To uncover or make explicit Roberts's conservative side? To somehow get him to align himself with the wrong end of a highly divisive issue? Merely to discredit him?

To discredit Roberts will be very difficult in these hearings and, as I have said before, counterproductive--we need a respected judiciary, not a slate of nine robes who people think are partisan stiffs.

To force Roberts to come out against a right to die or eminent domain or something similar or to "uncover" his conservative side--both are merely attempts at discrediting him. It is unlikely that such attempts--even if successful--will result in his being rejected by the Senate.

So what are Schumer, Feingold, Brownback, et al. really playing for? I don't know if they know, but it's not the least bit strategic or even very bright. It's bush league, and I don't intend a pun.

What do we (liberals) really need to know about Roberts? Not how conservative he really may be--we need to know what are his strengths--understood not as what he is good at, but what he is good for us at. Can we count on him to insulate the judiciary from the influence and intimidation of Congress, the President, and extreme interest groups? (One word here--just because Roberts's politics may be conservative does not mean he is in "their" pocket--but that is a topic certainly to be pursued--how much allegiance does he feel he owes to the executive and legislative branches, etc.)

Also, why don't they ask him a bit more about how he sees his duties specifically as Chief Justice? How will he assign the writing of opinions, how will he handle 7 fellow Justices who are much more experienced than he, etc. His answers to these sort of questions--much like his "umpire answer"--will reveal far more about his philosophy of law (and will consequently be far more valuable) than trying to get him to talk about abortion.

Are we playing a prevent defense--just trying to locate the cases and precedents he might strike down so we can marshal our forces now? As Schumer said, "What we need to know are the kinds of things that are coming before the court now." No, honestly, we don't.

Are these hearings to confirm him as a Chief Justice or to try to confirm our worst suspicions about him? There's an old lawyer's saying that you never ask a question of a witness that you don't already know the answer to--that's certainly the way the Senators are acting.

(Caveat: I honestly have not been watching the hearings--no TV here in Scotland--but I've been reading about them and nowhere have I found coverage of questioning like I propose. Feingold had a few questions along this line, but they were mostly of the sort that result merely in yes/no answers, not in insights.)


  1. Anonymous5:13 PM

    Schumer said yesterday he would vote for Roberts.

  2. Anonymous2:34 PM

    I think that the confirmation hearings show that most of the senators, with the possible exception of Specter, don't understand enough about what judges actually do to ask intelligent questions. Mostly they're concerned about the results. And as Roberts (and every nominee before him in one way or another) has said, it's improper to ask a nominee what results he'll produce if confirmed.

    W/r/t your proposed questions to Roberts about how he'd handle his duties as chief, I think those are likely to be dead ends as well. For all of the allegations against Rehnquist of partisanship, I don't think he's ever been seriously accused of assigning opinion writing on a partisan basis. Roberts would probably say that he'd assign opinions based on neutral criteria, involving some combination of random allocation, expertise (e.g. Scalia and Breyer are the experts in admin law, but of course they're all experts in a sense), interest, and a desire to spread out the workload. And maybe he'd mention that, in some cases where it seems particularly important for the court to speak with one voice or where the Chief's leadership seemed appropriate, he'd be sure that he was the one to write the opinion (e.g. Brown v. Board of Education was unanimous with Warren writing the decision, and Bush v. Gore was a 5-4 split with Rehnquist writing the majority opinion, though Roberts probably wouldn't mention the latter case). Or maybe Roberts would say something even more vague like he'd respect the input of his colleagues and try to be neutral and fair.

    Roberts has taken a lot off of the table with his statement that he doesn't have a unifying theory of constitutional adjudication. I think the only productive line of questioning would be to try to hold his feet to the fire on that, but he's proven to be too intelligent to let that happen.

    My sense of it is basically: (1) everyone knows that Roberts will be confirmed, and (2) Democrats are trying to strike a balance between (a) putting on a show to bolster their argument that the Senate has a responsibility to give nominees a thorough questioning, and (b) appearing reasonable so that they can reserve the right to act nasty or even filibuster the next nominee when O'Connor's replacement is nominated.

    They're not doing a great job of accomplishing either objective -- they're basically coming across as week and a little feeble-minded on the issue of judges. It's the same cross-purposes, incoherent, what-do-we-really-stand-for-anyway attitude that lost them the last presidential election.

    The Dems need to establish a coherent stance on what sorts of questioning are appropriate, and explain why that stance would be equally applicable under a Democratic president and a Democratic majority in Congress.

    And they need to stick to that stance, whether it means giving Roberts a rough ride and filibustering when their demands aren't met, or simply saying "the President gets who he wants within reason, and we'll say the same thing when we're in office."

    Otherwise, they'll continue to be rightly criticized for coming up with principles for the situation and will constantly be putting out fires and praying for the next Souter to slip under the radar.

  3. wow, congratulations--i think you're the first person to write a response to a post of mine that's actually longer than the original post--no mean feat.

    I think your first paragraph is essentially what I meant when i said that the senators are playing a prevent defense--they're trying to figure out how bad Roberts might be--as I say, that's a bad line of questioning. You point out the correct reason why.

    I think it's important to ask questions that get Roberts on record as to how he will act as Chief Justice--this is, in some ways, a job interview. I would have liked to have seen him interviewed a little more closely as to how he will fulfill his administrative duties. And if he's the least bit vague--hold his feet to the fire--he should have given some thought as to precisely how he will administer the court.