September 14, 2005

Day 3 of the Roberts hearings.

Let's run through Day 3 of the Roberts hearings. I see we start with the tail end of the first round. Yesterday I thought I'd missed the last two, Sam Brownback and Cryin' Tom Coburn. But here they are, starting us off this morning.

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?

ROBERTS: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.
"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.

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.

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.
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:
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.

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?
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?

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.


VietPundit said...


Did you get your tooth pulled earlier today on purpose, just so that this would seem less painful in comparison?

Pete said...

Wow, it's getting harder and harder for me to defend Tom Coburn.

I still think you're being mean about the crying thing. But fire away about his dumb statements you quote. Jeepers.

Coco said...

I was listening to Coburn when he uttered the ridiculous question you quoted - the gallery spontaneously erupted in laughter and Roberts response was something to the effect of "I obviously need to agree but I'm wary of doing so because I think you're trying to trap me." Coburn then said yes, I know this seems obvious and you know I'm going somewhere with this and I am. He then made a general public service announcement to the effect that the supreme court's decisions lack common sense becuase if the absence of brain waves indicate death than the existence of brain waves must indicate life and thus, abortion is wrong. Roberts does indeed thank him for his views. Pretty funny. I think ROberts should have responded to many of Kennedy's pontifications in the same way.

The Daily Show by the way had a pretty funny bit on Coburn's crying jag - showing him breaking down as he elucidates on all of the high-minded promises of democracy that he obviously considers so important and then showing him doing a crossword puzzle later in the day.

jeff said...

Sure the Constitution is a "living document." That's why we can amend it.

And that's the only way changes in interpretation should be handled.

SippicanCottage said...
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Troy said...

Roberts has "handled" this committee very well. No wonder the current SCOTUS members think he's the best advocate they've seen. This guy is butter -- even with the Frank Burns eyes (he does have that ferret face thing going I hate to say). He also has a major 40-year old virgin vibe going, but that's just me being shallow.

Coburn is laughable, but is he any moreso than these other goons? Daniel Webster, John Calhoun, Sam Rayburn et al. must spin in their graves when they look down on these so-called statesmen (persons).

I vote for a Senate that meets only 6 months out of every 2 years.

alikarimbey said...
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Simon said...

Coburn is laughable, but is he any moreso than these other goons? Daniel Webster, John Calhoun, Sam Rayburn et al. must spin in their graves when they look down on these so-called statesmen (persons).

Toqueville observed that the House is a rabble, while only in the Senate can great statesmen and orators be found. For the last seventy years, though, we have been slowly turning the Senate into the House - is it any wonder the same vices are emerging? I've been reading a lot of material recently relating to the 17th amendment, and I've got to tell you, watching these nomination hearings is making a pretty compelling case for repealing the 17th amendment. I think I'm going to start drafting a 28th amendment...

The only hero from the Democratic Party is Biden, who I will support for 2008

Are you kidding?! He's the worst of the bunch! By comparison, Teddy Kennedy is lucid and Chuck Schumer is selfless! I swear, I will give real money to anyone who runs against Biden.

Simon said...

By the way - what does it have to do with anything whether Schumer (and Roberts, for that matter) are white, black or purple with green polka dots?

Unknown said...

I watched for a while at the time Biden was "questioning" and I also felt he was totally over the top, like he was in psychiataric terms decompensation--like the opposition in general?

And re Hillary, let's be precise: she is a hillbilly only by marriage. She was raised in Evanston.

alikarimbey said...

Biden is honest. He is not a manipulative like Schumer or Hillary (who is a spousal beneficiary - used the White House to get to Senate - that is, she cannot be compared to everyday women who rise to the top on THEIR OWN without spousal or paternal/maternal benefits).

Biden is funny. Biden is jolly. Biden is intelligent. Biden is fair. He did say that JR was the best he has ever faced in the Judiciary Committee. That is courageous.

Teddy is a fraud. He was kicked out of Harvard for cheating. His nephews are characters themselves - all preveliged kids.


John Thacker said...

Biden is funny. Biden is jolly. Biden is intelligent. Biden is fair.

Biden laughs merrily at his own contradictions. He knows it's coming and doesn't really give a tinker's damn, nor feel any need to reconcile himself. It's a little too much for me, really. Do I really have to choose between the people who take it way too seriously and the people who don't really take it seriously but still put on a show and pretend that they do?

Steve Donohue said...

"And re Hillary, let's be precise: she is a hillbilly only by marriage. She was raised in Evanston."

She was actually raised in Park Ridge, another northern (northwestern, in this case) suburb of Chicago, which happens to be even swankier than even Evanston. Evanston is a bit of a college town; some parts are nice, others not so much. But Park Ridge is NICE.

This post is not completed in malice, but instead because I feel I must be a snob on all things Chicago related. It's a weakness, and a pathological one at that.

irish guard said...

I love the Kohl question about Bork. Anyone can deny I am right, but I dare them to say I am wrong. I have always believed and will continue to believe that Bork was denied a seat on the Court for his actions during the Saturday Night Massacre.

Troy said...

Re Hillary,

I have a branch of family from Arkansas... One who lays down with a hillbilly is in fact, a hillbilly. Do you know what you call an Arkansasan with a Yale degree who was a Rhodes Scholar? "Hillbilly".

She doesn't have the trappings (and what trappings they are!!), but she's got the 'tude -- right down to putting up wither her rutting hubby.

Doesn't mean she won't get elected though...

Beldar said...

I'm only about half-way through today's TiVO'd proceedings, but the senators are repeating themselves badly, and Judge Roberts is repeating himself patiently in reply. Feel no blogger guilt, and rest and recover soon from your oral surgery. (BTW, you can fill that prescription without necessarily taking it, just in case your 3am point of view is different than your 10pm pain perception.)

Meade said...

Heroic post-extraction blogging! Great insights, esp. into Dianne Feinstein. Thanks.

VietPundit said...

"But I'm just beyond the point where I can carve out spiffy comments."

I must say I've enjoyed those spiffy comments hugely. I think some time back there was a post where you mentioned that you might have a different "personality" in the comments (a bit more, shall we say, feisty) than in the main posts. I think that personality is showing in these tivo-blogging posts.

Anyway, hope you'll recover soon from your oral surgery, and looking forward to more of this.

Joan said...

ITA, lmeade -- heroic.

Thanks, Ann! I hope you are able to sleep well, and feel better tomorrow.

Peter Hoh said...

I, for one, am glad that as a result of all this questioning, we finally learned Judge Roberts' favorite movies. Maybe tomorrow we can find out what's on his iPod.

Seriously, I found the Q&A tiresome, and I didn't give the procedings sharp attention. One exchange stood out. Grassley asked Roberts how he might consider legislative history, and I think Roberts gave a pretty good answer. We could use more questions like that, and fewer of the Roe-baiting variety.

miklos rosza said...

I feel you should have had the rx filled for form's sake, as Americans physicians generally underprescribe for pain, and also in case of the rainy day.

Robert said...

Thanks so much for blogging these hearings. I just can't bring myself to burn the lifespan watching - yet I know that some important things will happen. Having you review it lets me stay informed without having to lose a productive day.

(Hmm, this appears to be a snarky way to say "God, Althouse has no life" but my intent is honestly appreciative.)

madcat said...

Ah, but there was quite a significant exchange in the Biden questioning. Again, Roberts disavows a Scalia-like approach to originalism, explaining that traditions should be read broadly, in terms of the larger principles of the constitution, allowing for changing times. As opposed to a narrow focus on the act being banned itself. And of all cases he chose to pick as an example, he picked LOVING... the very case same-sex marriage advocates analogize to. Curiouser and curiouser:

BIDEN: Here's the point I want to make: I asked -- and I'm sure you're not going to answer it . . .

You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.

So in determining whether or not there are any visitation rights, there's a famous footnote there. . .

The court said -- Scalia said in footnote six, "Look, you go back and look at the specific historical precedent." Short-circuiting it, "Have bastards ever been protected in the law?" And Brennan (ph) said, "No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?"

Now, Scalia said, "No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here."

And by the way, "You should never go back," he says, "and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?"

So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.

The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?

BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?

ROBERTS: Thank you.

The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.

And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.

So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain.

BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.

ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?

And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.

So you look at it at a broader level of generality.

madcat said...

... and, in reading the above passage, it also helps to see his answer to Specter, where he really distances himself from Scalia's original intent jurisprudence:

ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.

And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.

But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.

And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.

ROBERTS: I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.

Noumenon said...

Orrin Hatch has a supportive interaction with the nominee that I'm not going to detail.

This made me very curious.

Roberts: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.

This sounds either deliciously snarky or a very surefooted humor acknowledging someone who stepped in to support him -- but even from Google, I can't find out why he called him that!

tarpon said...

Feinstein should just give up on the gun free school zone nonesense. If she wants to do something for the children, why not push CA to pass Jessica's law -- the Democrats in the CA legislature don't seem interested in protecting children, but like her they focus on just passing nonsensical gun control laws.

The whole hearing has turned into nothing more than Senators 'playing lawyer on TV' and hope the public doesn't notice.

Greybeard said...

Thompson was tasked with preparing Roberts for the hearings.

They've spent a lot of time together over the last several weeks.

Pat Patterson said...

I've always thought that California had the most mentally challenged senators in the nation. Now, after listening to Biden and Coburn I'm not too sure.

Troy said...

madcat: You said Roberts separated himself grom Scalia's original intent views. Scalia does not advocate applying the meaning of the words as they were put into practice in 1783.

Liberty meant the same then as now -- it was just not applied that way by the framers. Scalia wouldn't allow segregation of senate galleries -- I don't mean to imply you think he would but your statement could be interpreted that way -- indeed many Scalia-haters or "living COnstitution" folks (and I'm not accusing you in any way of that) push that very canard.

Feinstein and guns... Has anybody ever seen where she's discussed her views? She witnessed the 2 Dan White murders in 1977 (Harvey Milk and Leo Mosconi -- the mayor of San Fran) I believe she was in the room with the mmayor when he was gunned down. Doesn't make her policies any better, but it may explain her passion. I don't know of course.... just wondering.

Simon Kenton said...

"She witnessed the 2 Dan White murders in 1977...." Ah, yes. When the assailant had been deranged by the consumption of Twinkies.

Sometimes I find it difficult to take California with anything like the seriousness that Californians take Californians. They are so resolute in doing what doesn't work, and when its failure begins to appear, doing it harder, more piously, for more money. It's as if the entire state had the collectivized personality of an addict.

madcat said...


The originalism of Scalia that I believe Roberts is distancing himself from has been called by Scalia a "regime of static law," which Scalia has described as follows:

"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."

"Of course, society remained free to decriminalize those acts [through legislation], as many states have. But under a static Constitution, judges could not do so."

(as quoted by the Christian Science Monitor in this article).

Now, while I think Roberts may end up agreeing with Scalia's result in regard to end-of-life and abortion issues, I don't think he's going to get there by following that type of originalist philosophy. And I'm starting to wonder from his friendly nods to Lawrence, his advisory role on Romer, and most importantly, his citation of Loving as an example of his broader (than Scalia's) interpretation of original intent and the appropriate breadth with which one should look at "tradition" in a substantive due process case, if he might be even more an ally of equal rights for gays than previously thought.


Simon said...


Scalia's original intent jurisprudence

Scalia does NOT use original intent. I really am getting tired of correcting this absurdity. Scalia has said, repeatedly, that intent is moot. For example:

"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words." (Source)

madcat said...


Ok, I'll stop using the phrase "original intent" to describe Scalia's philosophy (I always thought it was a misnomer anyway, considering Jefferson's own words inscribed on the ceiling of the Jefferson Memorial that I am not an advocate for frequent changes in law and constitutions but laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change. With the change of circumstances, institutions must advance also to keep pace with the times. We might just as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.").

I'll refer to here as he does, a preference for a "regime of static law." (see my earlier comment with the CSM quote).

madcat said...

Also, while one might argue that in distancing himself from "original intent" advocates, Roberts wasn't referring to Scalia, in the later exchange with Specter, he DID explicitly distance himself from Scalia, whose narrow approach to tradition in substantive due process cases was contrasted with his broader interpretation of tradition. I didn't post the intro to the exchange, but it was all about Scalia's narrow reading of tradition. Roberts concurred that the significant debate on substantive due process is whether to interpret tradition broadly or narrowly, and he explicitly stated that he prefers a broad reading.

madcat said...

(sorry, make that the Biden exchange, and my earlier quote of it did indeed include the specific references to Scalia's more narrow approach)

Unknown said...

Steve, of course you're correct! I too lived in Park Ridge till I was 7--in later years I figured about half a mile from Hillary. She was a bit older and we went to Catholic schools, so at most I probably bumped into her at the Saturday matinee at the Picwick Theater.


Simon said...

The reason that it bothers me is that original intent - which does actually exist as a theory - is an absurd and contradictory position that has been roudly repudiated by virtually every reputable originalist since the mid-80s. But here's the clever thing: because it's one branch of originalism, people like Jack Balkin can write clever articles on Slate that ignore the fact that saying original intent IS originalism is like saying all sports involve hitting balls with bats. Sure, there are SPORTS that involve HITTING BALLS WITH BATS, and sure, HITTING BALLS WITH BATS constitutes some forms of sports, but the two aren't synonyms, and neither are originalism and original intent.

Ah, but here's the trick: if you can con people into thinking originalism and original intent ARE synonyms, then you can spend the rest of your article castigating originalism in general using arguments which are very valid against original intent, but that are utterly meaningless against originalism, and most of your audience will never know the difference!

I was once having a conversation with a chap, and I mentioned that I'm an originalist. He looked at me with astonishment and faint anger and declared the standard bullsh*t that originalists are racist pigs who want to overrule Brown - because the framers never intended to outlaw segregation. To which any sensible originalist would reply, as Scalia replied to Stevens in Rutan, who cares what they INTENDED - the fact is that they DID outlaw segregation. We are bound by their WORDS, not their INTENT. The implication of Scalia spending almost half of A Matter of Interpretation explaining why legislative intent is irrelevant seems to have entirely gone over the heads of most of his detractors, including at least two who wrote replies in that book.

I'm fairly comfortable with the term "regime of static law", at least as it applies to JUDGES. Obviously, the legislators can change the law, which has been one of the most absurd things about watching the Roberts hearings, with all these preposterous Senators talking as if they have absolutely nothing to do with alleviating the problems they're asking Roberts to magically (and entirely unconstitutionally) solve from the bench. So the law isn't static in the sense that it's unchangable - obviously, it can be. Just not by judges.

Steve Donohue said...

I think I just fell in love with you for bringing up the Pickwick Theater! Ah...the field trips I've spent there! I think there is a rule that states that if you lived in the north Chicagoland area and went to a Catholic school (as I did), you must go to the Pickwick. But I miss those days...

Also, Harrison Ford was somewhere in Park Ridge during those days, no? You were in semi-illustrous company then- 2 famous Park Ridgeites in a population of 35,000 or so people is pretty impressive.

madcat said...


But doesn't Brown v. Board stand for the proposition that sometimes such change DOES have to happen through the judiciary when the legislature fails to act to protect equal rights? I think that at least Roberts seems to think so, from his hearing answers. And, no, I won't call Scalia a segregationist or purport to know how he would have ruled in Brown, but I do have a problem reconciling the "social change must happen through the legislatures, not the courts" argument with simultaneously accepting the validity of Brown v. Board.

TS said...

By becoming John Roberts the chief justice...

Too bad Dewine didn't slip and say "By becoming John Malkovich..."

We're paying for these hearings, so we should demand the most for our entertainment dollar.

Simon said...

But the difference in Brown was that the laws overturned in that case were actually unconstitutional. That's the key thing: the consitution always prevails, and if that results in social upheaval - as, for example, will follow when Roe and Casey are overturned - then that is a secondary matter. The Judge has done exactly what he must do: follow the constitution. the Judge's job is process, not result; he should be neither enticed nor deflected by the possible result of a case.

So, in reality, Brown v. Board stands for the proposition that sometimes such change DOES have to happen through the judiciary when the legislature makes unconstitutional laws. There's a big difference, though between Brown - which held unconstitutional a law which actually was unconstitutional - and social policy masquerading as law, as happened in Roe, or Lawrence, or Roper, for example, where a law is held unconstitutional when it actually isn't, just because a Justice wants to give effect to his vision of what society needs.

We can be fairly sure how Nino would have ruled in Brown. See Rutan v. GOP of Illinois, 497 U.S. 62, 95-6 (Scalia, J., dissenting) at n.1:

The customary invocation of Brown v. demonstrating the dangerous consequences of this principle, is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view, the Fourteenth Amendment's requirement of "equal protection of the laws," combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century, the principle of "separate-but-equal" had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices.

madcat said...

Interesting. Seems to me that a strict textualist reading of the 14th Amendment would recognize that prohibits states from depriving ANY person (including gays) from equal protection of the laws, not just former slaves, and not just prohibiting racially discriminatory laws. Again, this is something Roberts points out, that the incredibly breadth of liberty as a principle is more important than the 14th Amendment's anti-slavery context, and that, at least it seems to me, he consequently agrees with the reasoning of the Lawrence (and Romer) majority opinions.

Simon said...

Interesting. Seems to me that a strict textualist reading of the 14th Amendment would recognize that prohibits states from depriving ANY person (including gays) from equal protection of the laws.

To a certain extent, I agree, actually. But I agree within the context of equal protection and P&I; I don't believe in substantive due process, though, and so I don't agree that the "liberty" in that clause refers to anything other than what it appears to mean in context: that a person may not be executed, imprisoned or fined without the due process of law. For that reason, I must reject Lawrence, even though I don't necessarily agree with Scalia's dissent in its entirety.

I fear that the mounting frustration of watching the court rule time-after-time at utter variance with the constitution may be beginning to get the better of Scalia. Many of his dissents for the last few terms have seemed angry and frustrated, rather than lacerating and sharp. He's still right, most of the time, but the sheer gutsy gusto just doesn't seem to be so present of late, and you can really see Thomas picking up the baton in cases like Kelo.

madcat said...

Let me guess... the part of Scalia's dissent you disagree with is the part where he says that after Lawrence, there's no escaping same-sex marriage rights eventually being affirmed? :)

It'll certainly be interesting to see how all of this plays out under the new chief justice.

Trickster said...

Hillary (who is a spousal beneficiary - used the White House to get to Senate - that is, she cannot be compared to everyday women who rise to the top on THEIR OWN without spousal or paternal/maternal benefits)

I'm not a reflexive Hillary fan, but I have to respond to this.

Does the fact that a woman marries a man who goes on to be very successful--in fact, more successful than she--mean that her own career accomplishments mean squat?

Remember, Hillary and Bill met when they were both students in YALE LAW SCHOOL. Does that mean anything to you?

While still unmarried, and when her Arkansas boyfriend was a nobody, she worked as assistant counsel to on the Senate Watergate Committee. Need I point out that this was a very very very very very plum job for a recent law-school graduate?

I'm sure being the Governor's wife didn't hurt her as she became a senior partner at Arkansas's largest law firm, one of America's Top 100 Lawyers, and a driving force in the Children's Defense Fund, but my impression is that she actually went to work every day by herself and that her job was scarcely a sinecure.

I doubt she would have gotten into the Senate had she married somebody else. But I understand she has done a pretty good job since she has been there.

largenfirm said...

Feinstein and guns... Has anybody ever seen where she's discussed her views? She witnessed the 2 Dan White murders in 1977 (Harvey Milk and Leo Mosconi -- the mayor of San Fran) I believe she was in the room with the mmayor when he was gunned down. Doesn't make her policies any better, but it may explain her passion. I don't know of course.... just wondering.

Point of fact, here.

While Feinstein was a witness in the murder of Moscone (she saw Dan White escaping the scene), she most certainly was not in the room when Moscone was gunned down, nor did she see Harvey Milk killed.

Prent Rodgers said...

I read your comments on Feinstein in my podcast today, and then played the clip from C-SPAN. I also include clips from Feingold and Schumer. The most interesting parts are the conflicts between the democrats and the judge. It's great theater.

California Conservative said...

Feinstein makes California proud...

Troy said...


Thanks... that cleared it up. I had heard/read that Feinstein was "there" but no details on how "there" she was.