Brownback asks Roberts about Kelo, the recent takings case, and Roberts shows his firm understanding of the issues, but, as one would expect, won't tell us if he thought the Court got it right. Brownback asks about Congress's power to remove particular issues from the Supreme Court's jurisdiction, and Roberts says what he said yesterday: it's a bad idea for Congress to use this power, which may or may not exist — he's not telling. Brownback moves to the topic of abortion, which he focused on in his opening statement: "Could you state your view as to whether the unborn child is a person or is a piece of property?" Roberts gives another short, noncommittal answer about abortion rights. Brownback then consumes a huge chunk of his time giving an anti-abortion speech, at the end of which Roberts can only say, "Well, Senator, I appreciate your thoughts on the subject very much."
Cryin' Tom Coburn bores me to tears except when he amuses me with: "Would you agree that the opposite of being dead is being alive?" And with his "medical" opinion — he's a doctor — that Roberts is a credible witness: "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." I'm under some stress over here, listening to this nonsense.
Now we start the second round of questioning, with 20 minutes more from each of these 18 Senatorial characters. So it's back to Specter.
Arlen Specter gets Roberts to expand on the notion of a "living Constitution," which he brought up yesterday. Roberts says: "[The Framers] intended [the Constitution] to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages." That is not the "living Constitution," though. That sounds like a expression of belief that Framer intent governs, so the original conception of the right stays, but that the right applies to new situations — and that itself was intended by the Framers. On further questioning, Roberts restates his idea so that it falls somewhere between a fully evolving Constitution and commitment to original intent. Where the Framers have used a broad, abstract term like "liberty," the courts aren't bound to the particular details that they would have thought liberty comprised. "[W]e should hold them to their word" and interpret the term "consistent with their intent, which was to adopt a broad principle."
Patrick Leahy works through a set of questions mostly aimed at testing Roberts' sensitivity to the rights of the accused and the death penalty. Leahy is blabby and emotive. Roberts is crisp and intent on using legal analysis.
Orrin Hatch has a supportive interaction with the nominee that I'm not going to detail.
It seems more interesting to move on to Ted Kennedy. Toward the end of this exchange, Kennedy gets exasperated that Roberts won't answer more questions (which has become a very tiresome subject):
Well, this may eventually come on up before the court. But the fact is we know how every other justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O'Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.Yes, we know the opinions of judges who have already made decisions as judges, but how could that possibly mean that the nominee has to give an opinion in advance?
I like this Q&A with Senator Grassley:
GRASSLEY: Are you against cameras in the courtroom like Justice Rehnquist was?"My new best friend" — that's a locution you don't expect to hear from a sober judge. I hope it means he's Hollywood enough to want those cameras on him, because I want to watch.
ROBERTS: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.
Joe Biden is hamming it up big time, dramatizing the frustration of not getting Roberts to say how he'll decide specific cases. We've been through this so many times, but Biden seems to think that, if he just emotes more than the others, the American public will finally see the outrage of a judge not committing his vote before hearing the case. Yet every time Roberts explains why he won't answer, he sounds so eloquent and even inspiring about the role of the judge, that it ends up making the Senator look childish.
Next, Jon Kyl begins to pose a question, " A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise," and Joe Biden — who just got done hogging the stage — blurts "I bet I'm the wise one." Kyl goes "I'm sorry?" And we see Biden grinning crinkily, beaming as though he thinks he's just adorable. He waves his hand in the "never mind" way and looks down, laughing somewhat maniacally, inexplicably pleased with himself. In fact, the quote turns out to be what Biden said at the Ginsburg hearing about a judicial nominee not answering questions. Well, why doesn't Biden take responsibility for his egregious contradiction? Somehow that old quote doesn't count and he can be all outraged that Roberts is doing what he supported Ginsburg's doing? Doesn't Biden want us to take him seriously if he's planning to run for President? He seems hopelessly out of touch with the impression he's making.
Interesting question from Herb Kohl that Roberts doesn't answer: "Do you believe that the Senate's rejection of Judge Bork in 1987 was a reasonable and respectable act, or instead do you view it as a period of unfair partisanship? What were your thoughts about that case as it unfolded?"
Senator DeWine blats out this cornball advice: "By becoming John Roberts the chief justice, don't ever forget to be John Roberts, the man." And then: "When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth."
Uh-oh. Dianne Feinstein is next. I've heard some of this in the car, so I know how bad it is. The Senators pretend not to understand law (or actually don't understand it), and what I heard in the car was the worst. But I kind of like something she says at the beginning:
I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I've heard so many times, I can't really say because it may come before me. And yet, I don't expect you to say what you would do with Roe one way or another.That sounds genuine to me, not the usual pre-written material. Here's the part I heard in the car that lowered my opinion of Feinstein:
But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time.
Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.Why did I dislike that so much? Because there is a complete disconnect between the legal question, the scope of the Commerce Clause, and the rhetorical listing of victims of violence. Is the listener not supposed to notice that there are state laws against murder that don't prevent all murders? Why would a federal law against gun possession have been more effective? Or is one of Congress's enumerated powers the power to show it cares?
It goes through most of the time scrubbed pretty good before it gets to the president.
Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.
'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.
Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.
And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.
Now, at what point does crime influence commerce?
I'm skipping Sessions again. On to Feingold.
Actually, no. I'm hitting the wall for today — a tough day, with some grueling minutes at the hands of my kindly oral surgeon. Time for a glass of cognac. I've had my pint of Haagen Dazs. I've downed my Advil tablets (leaving my prescription for a Controlled Substance unfilled). Sorry I'm not getting to Schumer. I heard a bit of him in the car and thought he was awful. But I'm going to have to sign off for the day. I'm not in pain. Don't worry! But I'm just beyond the point where I can carve out spiffy comments. And my senator, Feingold, deserves a fresher eye than I have now. Good night, all!
So that's it for Day 3, as seen by your humble blogger.
UPDATE: I survived the night without Controlled Substances. Advil was perfectly adequate.