The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].
Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be."
It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:
LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.
LEAHY: I mean...
FRIED: Yes, I'm afraid I do.
LEAHY: They don't admit it. But do you know anybody who should disagree with it?
FRIED: Not a soul.
LEAHY: I thought you might feel that way.
But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.
Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!
(I'm sorry I don't have a transcript to link to. Here is video of the event.)