September 13, 2005

Day 2 of the Roberts hearings.

I'm getting a late start, but I will persevere, beginning at the beginning, with the help of my TiVo.

Arlen Specter starts off the questioning, asking about stare decisis in general and Roe v. Wade in particular. Roberts sticks to the general and avoids the particular. Specter pushes his term "super-stare decisis" for Roe and whips out a gigantic poster listing the 38 cases that "reaffirmed" Roe v. Wade and asks if Roberts would think "Roe might be a super-duper-precedent." Roberts emphasizes that it is Casey that really matters, because that is the case where the Court addressed Roe and stare decisis and genuinely reaffirmed it. The other cases, I add, didn't so much "re-affirm" as simply accept and apply.

As noted in an earlier post today, Roberts states that he recognizes the existence of a constitutional right of privacy, but he frames his answer in a way that should appeal to conservatives as he stresses the constitutional clauses that express privacy rights. As to the rights in the penumbra, he says nothing. Instead of pursuing Roberts about that, Specter tries to get him to say Roe is a locked-in precedent. Of course, he does not.

Asked about the "notion of a Living Constitution," Roberts makes the seemingly unRehnquistian statement: "I agree that the tradition of liberty is a living thing." I say "seemingly," because it is well known that Rehnquist (like Scalia and many conservatives) rejected the notion that the Constitution changes to keep up with the times, but Roberts didn't say that it did. He said that "tradition" is a living thing. Whether the ongoing, living tradition of liberty makes its way into the interpretation of constitutional clauses containing the word "liberty" is another question. If Specter were sharper, he would have done a follow-up question.

Patrick Leahy asks a series of questions about separation of powers. "Isn't this hornbook law?" he asks when Roberts can't answer a difficult question about whether Congress can vote to stop a war. Leahy seems peeved that the answer isn't an obvious consequence of the power to declare war. Roberts handles these questions well, even though Leahy frequently interrupts him.

Questioning Roberts about standing doctrine, Leahy misses the entire point by not recognizing that injuries to the environment are enough to give a person standing. He blurs them into the same category as no injury at all. Roberts sincerely sorts through basic doctrine — this really is "hornbook law" — and doesn't make it excessively obvious that Leahy doesn't understand what he's trying to talk about. Leahy mumbles his way into another interruption talking about — what? — tennis star? Oh, Kenneth Starr. Oh, lord, I wish Leahy's turn was up!

Orrin Hatch lays out the various methodologies of constitutional interpretation, taking categories from a Cass Sunstein book. Roberts doesn't like the labels and calls himself a "modest judge." He goes on to speak comfortably and fluently about how judges ought to behave, and it makes me think that Hatch lobbed him a nice nerf ball. The Hatch questioning makes a lovely resting point for Roberts — and yet he's saying a lot of basic things that are useful for people to hear. "It is emphatically the province and duty of the judicial department to say what the law is" — I try to say that at least once a week myself.

Roberts expresses confidence in the ability of judges to draw difficult lines. There is a difference between "making the law" and "finding the law," and judges know when they've crossed the line dividing the legislative from the judicial, he says. He thinks some judges go too far deferring to the legislature on the theory that they can't draw that line and can't say what the limit on Congress's power is, but deference to the legislature is also important, he elegantly adds.

Ted Kennedy invokes Katrina to bring up his themes of poverty and inequality. He outlines the history of civil rights cases and laws and asks Roberts to state that the progress that has been made is "irreversible." Kennedy becomes extremely antagonistic to Roberts over various issues — you can refer to the transcript for the details — interrupting Roberts repeatedly and looking quite angry. Several times, Arlen Specter has to tell Kennedy to let Roberts finish. At one point, when Roberts is just beginning an answer, Kennedy seems to snap "Roberts" at him, with no "Judge" or "Mr." in front of the name, and we rewind several times to try to figure out if Kennedy was indeed that rude. I still don't know, due to Kennedy's irritating garbling. Kennedy might have some good points to get out, but his anger and rudeness thoroughly undercut his presentation.

Chuck Grassley reads some legal material in a too-loud voice and asks Roberts to opine on it. The exchange with Grassley is very similar to the one with Hatch. Courts decide cases according to the law, you know. I'm trying to resist hitting the fast-forward button.

I succumb to temptation and fast-forward a bit. I stop at a point where I see Roberts' wife yawning. First laugh of the day, I think.

Joe Biden begins by saying "Hey, Judge. How are ya?" Then, "Look, Judge, uh, I'm gonna try to cut through some stuff if I can." What are the chances that Roberts is fooled into thinking he's facing an amiable, jovial pal? Biden goes on at length playing with yesterday's baseball metaphor and really gets on my nerves. When will he get to a question? Finally, he gets to the question whether Roberts thinks there is a right of privacy in the Fourteenth Amendment. Good! Roberts: "I do, Senator." But he can't extract much detail after that, as the two men get bogged down in how much Justice Ginsburg revealed when she endured her Senate hearings.

C-Span breaks away for its ritual of the opening of the House of Representatives, and Biden is ousted by those inconsequential 5 minute speeches. What an indignity! So, I must fast-forward.

It's time for Herb Kohl. Kohl gets Roberts to say that he believes in the right of privacy articulated in Griswold, as later framed in terms of substantive due process. That is to say, he doesn't endorse the notion of rights in the penumbra of the Constitutional clauses, as stated in the case. Roberts puts the right into the due process clause, as later cases did. But how big is this privacy right? Roberts will only say that it covers at least what Griswold spoke about — married persons' right to use contraceptives. The reason he would talk about that but not abortion is that he's sure that there would never be another case on that subject. That's a neatly framed position! It stops those who would try to destroy him for not believing in the right, but it commits him to nothing that he might actually decide.

Kohl is a mellow questioner.
Mike DeWine raises some interesting issues about FISA courts and then free speech. He doesn't so much seem to be testing John Roberts as publicizing legal issues of note. Now he's getting to a case I'm especially interested in, Garrett, which one of the Senators yesterday misrepresented as finding the Americans With Disabilities Act unconstitutional. (The Court merely found part of act not to be supported by the Fourteenth Amendment power, which meant that Congress could not abrogate state sovereign immunity. To put it simply, that limits plaintiffs to prospective relief when the defendant is one of the states.) DeWine's question is about judicial deference to congressional factfinding. The problem in Garrett was that Congress needed to find not just that persons with disabilities had suffered discrimination, but that their Fourteenth Amendment rights had been violated. There is a big discrepancy between these two things, however, because this kind of discrimination only needs to pass a minimal scrutiny test not to violate the Equal Protection Clause. So it's not really "factfinding" that was at stake in Garrett, but legal analysis about what rights are, which is the approprate role of the courts. But what Roberts talks about is how later cases — Hibbs and Lane — have been more deferential to Congress and how the the law in this area is still evolving. Basically, he is distancing himself from Garrett, which many people find distinctly unsympathetic. Roberts does not make any effort to explain the actual legal issue in Garrett. I'm sure that was a smart move, actually, rather than to try to explain the legal point I just did. No one would appreciate it.

Dianne Feinstein asks about several quotes that seem to reflect insufficient concern about women's rights. When he explains that the crack about encouraging homemakers to become lawyers was a joke, she chides him about his tone. Why isn't he modest and humble all the time? God forbid anyone should ever have a light moment and try to get on the Court. She moves on to ask about the Commerce Clause. He calls attention to the recent Raich case, emphasizing how broad the power the Court has recognized is and how minor Lopez and Morrison were. Feinstein brings up the separation of church and state and makes the blatantly untrue assertion that there is more divisiveness among religious groups now than ever before in our history. She tries to get him to state a belief in "the absolute separation of church and state." Of course, he doesn't. He says he doesn't know what the concept means, indicating that he sees Establishment Clause questions as complex, making me think he'll continue the trend of cutting the cases down the middle and offering up no clear answers.

Hey, it's grueling listening through all of this. It must be hard on John Roberts. It's just weird to have to sit there and be grilled all day long. Ah, but he'll have to work long and hard on the Court. Why not test his stamina?

Jeff Sessions. I'm skipping this one. Sorry.

Russ Feingold. First question: Why not televise the Court's arguments? Please say yes! Roberts talks way too much here, for some reason. Maybe he's trying to run out Feingold's time. Second question: How did September 11th affect your thinking about the law? Again, he gets weirdly chatty, telling the story of how he heard about the attacks unusually late, which was interesting but utterly irrelevant. Again, I'm thinking he's trying to eat up Feingold's time. Really strange! He hasn't done this to any of the other questioners. Feingold pushes him to focus on the question of undervaluing rights during wartime. This part is productive. Roberts is fairly noncommittal, but shows a somber concern about rights, as, of course, he must. He flatly rejects Korematsu.

Lindsey Graham wants to talk to Roberts "about life." He circles around a bit and hits on the question: what was Rehnquist's legacy? Roberts' answer is too generic for Graham, so Graham blurts out what he cares about: you're going to be like Rehnquist, aren't you? He follows up by asking what Bush meant by introducing him as a "strict constructionist" and then what is meant by the Reagan Revolution. Graham makes no secret of his goal of establishing that Roberts is conservative. Then he blasts all the Democrats in the room for thinking Bush would or should do anything other than nominate a conservative. Moving to particular substantive questions, he throws out the best-phrased question of the day: "I think it stinks that somebody can burn the flag, and that's called speech. Whaddya think about that?" Another Grahamism (about the ACLU): "In the conservative world, how does that rank on the food chain?" I'm amused again, but what is Roberts supposed to say about that? Graham rants about Justice Ginsburg, who, among other things, wants to do away with Mother's Day and Father's Day. I think I hear a gasp from the audience. You know, Graham is amusing me — more than anyone else today — but I think his tone is a bit clownish for the occasion. Still, he works his way to the bottom line deftly. The Republicans voted for Ginsburg, though she was clearly liberal: "They deferred to President Clinton because he won the election."

Sitting behind Roberts are three women (one of whom is his wife) dressed in neat, pastel colored suits. All have tasteful jewelry, sleekly nyloned legs, and the absolute obligation to sit still on stiff chairs. I'm starting to feel really sorry for them!

Uh-oh. It's Schumer. He says, "So you will be Chief Justice." Okaaaay. If Schumer's saying that, then can we all just please go home? Schumer admits to being "pleasantly surprised" by some of his answers. He sounds bored by his own disquisition. The Constitution is supported by "three legs"? I expected Schumer to be more of an attack dog. But he knows this is pointless. The cameras pick up Leahy and Specter, who seem to be finding this all very tedious. Or am I projecting? It's 10:43 here now and I've been trying to get through this since 2:30. Schumer introduces the topic of Wickard v. Filburn, then goes "ummm," in a tone that — to me — says, oh f**k, who's going to care about Wickard v. Filburn?

John Cornyn. Sorry, I'm skipping this one too. I expect him to support Roberts, so nothing much can happen here.

Dick Durbin is blabbing about Justice Blackmun, who, according to the Dictionary of Received Ideas, stands for the infusion of human emotion into judicial decisionmaking. One must quote the phrase "Poor Joshua!"

My C-Span recording shifts over to covering some vote on the House floor, where it stays until the end. So I've won a reprieve! There's nothing left for me to TiVo-blog. So there will be no Sam Brownback for me. (I don't care. He was boring.) And no Tom Coburn. No Cryin' Tom. Damn! Not really. I've had enough. I can't believe these characters are going to dribble on for another day.

I wonder what John Roberts will do tonight. I suppose he has to spend the whole evening going over the details of today's performance with his various advisors. But I'd like to think he didn't. I'd like to think he went home and had a nice dinner and a glass of wine with his wife, spent the evening playing Uno with his kids, went to bed early, and is now sleeping soundly. Dreaming — of what? Gloriously striped robes.


Robert said...

If Specter were smarter, he wouldn't be Specter.

Ann Althouse said...

Bone: Surprised the first comment didn't go for gotcha (which I knew I was lobbing like a nice nerf ball).

Charlie Martin said...

Just by the by, what the hell is "hornbook law"?

Simon said...

I have my issues with Lindsey Graham, but I've got to say, his performance today has been absolutely stellar. I'm impressed at how willing he's been to say things on the record that everyone else has been thinking off the record.

KCFleming said...

I suppose a real answer by Roberts, what he really thinks, would be interesting or informative if their was any real intent to form an opinion on the basis of his answers.

But there is not. You know and I know that this is a mere ritual, and all votes have been decided. This 'interview' is Noh theater at best, and cynical abuse at worst. A fun waste of time that I find fascinating, but I like watching thunderstorms, too. Neither is terribly edifying.

Ann Althouse said...

Charlie: A hornbook is an treatise on law, explaining the doctrines in straightforward form.

Bruce Hayden said...

Charlie, technically, Hornbooks are a series of law school oriented text books from West (now West division of Thomson) Publishing. When I was in law school, they were a distinctive green, as opposed to the West case books, which were brown. defines Hornbook Law as "lawyer lingo for a fundamental and well-accepted legal principle that does not require any further explanation, since a hornbook is a primer of basics".

howzerdo said...

Hornbooks were originally early primers used in teaching children to read. Other disciplines have borrowed the word to describe basic texts. Gina

Justin said...

Why did you TIVO C-SPAN? C-SPAN 2 is devoted to the Senate, Correct? Was C-SPAN 2 similarly interrupted?

Ann Althouse said...

Justin: C-Span had the hearings on 1 rather than 2. I assume it was because more people get 1. 2 would probably interrupt to show the Senate opening, anyway.

Simon said...

Anyone need proof that ABC News has an agenda? I watched virtually the entire day's hearings (thank god for CSPAN3!). For anyone who did too, try to reconcile your recollection of those hearings with the tone and intimation of THIS report....

Charlie Martin said...


VietPundit said...


Thanks for doing this, so that the rest of us won't have to sit through it. No need to apologize for fast-forwarding; you can only take so much.

Imagine if one day you'll be nominated, and you'll be live-blogging your own confirmation hearing! Wouldn't that be something!

Pat Patterson said...

As a layman I at least realize that asking Judge Roberts questions concerning current cases and decisions is a non-starter. It would be interesting to ask Judge Roberts how he would argue against an obviously bad decision of the Supreme Court, namely Scott v.Stanford. I supose that the Civil War and the resulting amendments decided the issue, but I still I would like to hear how the judge would argue the case. I'm not too sure I like the fiction of accepting long standing precedents as untouchable without getting some sense from Judge Roberts as to when a precedent might be reversed.

Joan said...

I felt very comfortable avoiding most of the coverage on TV today because I knew you were live-blogging (sort of) the whole spiel. Thank you so much for your insights, and for giving up the majority of your day to this task. I know more from reading your post than I would if I had watched it myself.

bill said...

So far, I've only read the transcripts, so I have to imagine the intonations and the degree of emotionalism. For some it's easy. For example, I can see Kennedy getting all puffy and indignant.

I'd also taken the opening statements and run them through MS Word's autosummarizing feature to see what happened. Slightly interesting. Decided to try the same thing with day two, but only made it through Roberts' response to Biden before bailing. Based on the autosummarizing, here's my super duper abbreviated version (through Biden):

Specter: Do you agree, as I do, that you will refuse to say anything meaningful about Roe V. Wade?

Roberts: I would just like to say, stare decisis, precedents, stare decisis and precendents, precendents and stare decisis, and in closing, Casey.

Leahy: Is the president EVIL or just evil? And why you hate sick children?

Roberts: Could you at least pretend to have paid attention to what I wrote? And just so we’re clear, every time I say “with all due respect…” what I really mean is “Could you be any more of a d*ckhead?”

Hatch I’ve been in Congress a very long time and I know stuff.

Roberts: I believe judges should be thoughtful and pay attention to all issues under review.

Kennedy We all know you hate black people so get it over with and say somethng insulting.

Roberts: Reagan was right, you were wrong, the Supreme Court agreed with us, get over it.

Grassley I like flowers. Do you like flowers? I think flowers are pretty.

Roberts: Thank you for giving me the opportunity to bring the issue of precedents to the table. Also, sometimes the court has to decide hard cases and they should do so in a thoughtful manner. cough Precedents cough

Biden I would like to use my time to read these overly clever questions my staff wrote for me: baseball, baseball, baseball, Ginsburg, Ginsburg, Ginsburg....and now my Sam Kinison impression, SAY IT SAY IT AH AH AH AHHHHH!!!!!!!

Roberts: Once again, the Supreme Court concluded that it was a correct reading of the law, so talk to the hand, analogy boy.

Simon said...

Somebody needs to ask the question of whether the fact that a case inspires over a million people to assemble at the Supreme Court's doorstep each year weighs in favor of overruling it or weighs against overruling it. Is Casey right that widespread criticism of a case means the Supreme Court should plant itself more firmly behind the precedent?

Steven G. Calabresi has a wonderful essay that touches on precisely this point, The Tradition of the Written Constitution: Text, Precedent, and Burke.

Ann Althouse said...

Crow: Roberts emphasizes the text and wants there to be a constitutional clause for the right. The Griswold Court found the privacy right somehow implied by the other rights — in the "penumbra" surrounding them

Simon said...

Could you explain the difference between the right of privacy coming from substantive due process and the right of privacy coming from a penumbra?

The due process clauses of the fifth and fourteenth amendments guarantee that you cannot be executed, imprisoned or fined without the due process of law; "life, liberty nor property". The doctrine of substantive due process holds that the term "liberty" actually refers to substantive rights, rather than freedom from restraint. What rights, you might ask? The courts will tell you. Bring us your greivances, and we will tell you whether it's unconstitutional or not. Or, we might tell you that it's not unconstitutional yet - the constitution changes, it doesn't mean what it meant when it was adopted, so give it some time and maybe the right you want till be protected under substantive due process. Who says Roe, says Lochner, and says Dred Scott.

So, if you buy into substantive due process - and Judge Roberts has explicitly told the committee that he does - you can find any right you want in the constitution. Obviously, then, the right to privacy, to an abortion and so on, can be pulled out of that hat. Justice Douglas, however, declared that privacy was a constitutional principal inherent in several provisions of the bill of rights which DO protect specific privacy rights. Of course, the fact that specific privacy rights would not need to be protected if there were a general privacy right doesn't seem to have troubled Justice Douglas, and the Griswold opinion is thus utterly hollow, IMHO.

That's the difference. Two deeply flawed ways to reach an unconstitutional result that matches the preferences of the Judge; seems to me that it doesn't matter which way you get to the wrong result. Once you abandon the idea that the constitution has a specific, fixed meaning, you're adrift at sea.

SWBarns said...

"This is Hornbook Law" is a phrase lawyers use when they cannot find a case that is directly on point.