September 12, 2005

The Roberts confirmation hearing.

[NOTE: If you've just arrived here from Slate and are looking for the reference to crying, scroll down to the comments on Tom Coburn.]

I'm going to try to TiVo-blog the Senate Judiciary Committee hearing. I detest listening to Senators speaking, but maybe by blogging along I can force myself to tolerate it.

Arlen Specter. Sorry, I was making a grilled cheese sandwich while he was talking. The one thing that struck me enough to remember until I got back to my keyboard was how wounded he sounded about the way the Supreme Court didn't didn't defer to Congress in the Violence Against Women Act case.

Patrick Leahy. I got my first out-loud laugh when Leahy just started reading the whole Preamble of the Constitution to Roberts. Then he kept saying "We the People" as many times as he could. Roberts has a really intense expression on his face — shots of him are making me think of some of the closeups of Maria Falconetti.

Orrin Hatch. He begins with a paean to William Rehnquist, and now, when the camera shows Roberts, he's looking truly joyful. Either he loved WR or he's just really glad not to have to listen to We-the-People Leahy anymore. I'd never noticed Hatch's accent before, but now I hear him say: "You've had two herrings before this committee." (Actually, I think it's not Hatch's accent. He's just garbling some of the speech he's reading.)

Ted Kennedy. He drags in Katrina. (So did Leahy.) The hurricane revealed poverty and inequity. "There are real and serious reasons to be deeply concerned about Judge Roberts' writings." The hearing are his "interview with the American people." The burden on him is "especially heavy." Why? Because they didn't get all the documents they asked for.

Chuck Grassley. The hearing to confirm Justice White only took 15 minutes. Why are the hearings so long now? TV! And now we've got the internet. Grassley mentions BLOGS! Sound the alarm! He tells Roberts that his experience arguing before the Court "bodes very well in terms of your smoodly transitioning into the Court." Smoodly? You know, if they can't even bother to pay attention to what they are saying, why should we listen?

Joe Biden. My, is he tan! He launches into an intense harangue about the how much the Constitution protects "human dignity and human liberty" and how great is the "consensus" about the right of privacy. Roberts has that passionate Falconetti look about him again. It was Biden who most deeply wounded Judge Bork, years ago, with the same sort of statements he's making now about police in the bedroom and the like. First mention of the dreaded "Constitution in Exile."

Jon Kyl. Looks and sounds good. Repeats themes I've heard too many times — Roberts doesn't need to answer all the questions, etc.

Herb Kohl. My son Chris (age 22) just came home. He looks at the TV and says, "Hey, that's our Senator." He watches for about eight seconds, then bursts out laughing and says: "What is the point of them lecturing him like this?" I just say, "Yeah, I know." Kohl says his standard for voting on a judicial nominee is "judicial excellence," which he proceeds to define as containing four elements. Chris says, "'Judicial excellence.' What bullsh*t." Kohl says: "Justice, after all, may be blind, but it should not be deaf." Me: groan.

Mike DeWine. First mention (I think) of using international law in constitutional interpretation.

Dianne Feinstein. The only woman on the committee begins by addressing Roberts' family, soothing their feelings: Don't feel bad if we really push this family member of yours, of whom you are justly proud. Why does the one woman on the committee have to be the one that talks to the wife? It's got to be the woman who takes care of feelings, doesn't it? Yet all the guys are pontificating as much as possible about women's rights. She reads her speech too slowly, and Specter ends up calling time on her just as she's in the middle of an elaborate description of a monument she saw recently in Budapest.

Jeff Sessions. He comes out against post-modernism. Words have meaning, he informs us.

Russ Feingold. I don't know why Wisconsin gets two Senators on the committee, but we do. Feingold gets the first laugh I hear from the assembled crowd, when he comments that Roberts looks "healthy," after pointing out that Roberts is up for a lifetime appointment. Roberts and his wife both look like they think it's highly amusing. Of course, Feingold's setting up his statement about how intense the scrutiny ought to be. Of all the Senators, Feingold makes the most articulate argument for why Roberts should answer detailed questions. He's the best speaker on the committee — probably the smartest too.

Lindsey Graham. "Elections matter," Graham says, making what is, I would say, the key point. George Bush won the election, and he won saying quite clearly what sort of judges he would appoint. Bush has now nominated someone with stellar professional qualifications, and the only grounds to oppose him would seem to be ideological. And that's simply not enough. "We shouldn't invalidate elections."

Charles Schumer. This Chief Justiceship would bring Roberts "awesome responsibility, awesome not in the way my teenage daughter would use the word, but in the Biblical sense of the angels trembling in the presence of God." I wonder if his daughter actually does go around saying "awesome" and if she approved of that line. Chances are someone on the staff wrote that and thought it was good comedy, though that "angels trembling/presence of God" part was a real laugh-killer. Or do you think someone thought that was good comedy too? Schumer says his vote is going to depend on whether Roberts turns out to be in the "mainstream." This is, I think, the first invocation of the term "mainstream." And, of course, we all know that this is a set-up for his closing speech, where he informs us that he came to the hearings with an open mind but has been deeply disturbed to discover over the course of the hearings that John Roberts is not in the mainstream and, therefore, sadly, he must vote no. Schumer sternly warns Roberts that he must answer specific questions and flatly tells him he will vote no if Roberts does not. I think we know very well that Schumer will vote no.

John Cornyn. "Everything's been said, but not everyone has said it yet," he jokes about his late appearance in the order of speaking. Of all the Senators, Cornyn makes the most articulate argument for why Roberts should not answer detailed questions. So he's Feingold's counterpart. He tells Cornyn, "Don't take the bait." Don't give them what they insist you must.

Dick Durbin. A judge ought to expand freedom and be courageous about it.

Sam Brownback. Hey, the person next to him has the NYT crossword there on the table. A Monday puzzle — can't while away too many minutes with a mere Monday puzzle. Brownback makes what is by far the strongest anti-abortion statement.

Tom Coburn. "When I ponder our country and its greatness, its weaknesses, its potential, my heart aches for less divisiveness," he says and pauses a long time, choking back tears. "He's crying?!" I exclaim. We rewind the TiVo and play it again and, I'm sorry to say, laugh a lot. After the long pause, he goes on: "...less polarization, less fingerpointing, less bitterness, less mindless partisanship." You know, I agree! I feel very strongly about all of those things. But crying in a Senate hearing speech, moving yourself to tears? I'm sorry. I laughed a lot.

Finally, the opening statements are over. Now, Richard Lugar, sitting next to Roberts, presents Roberts to the committee. It's Lugar because he's from Indiana, like Roberts. Following on is Evan Bayh, also of Indiana (and very nice looking!). Then John Warner takes a stern tone with the committee, telling them that they need to watch how they conduct themselves.

And at last! It's Roberts! He raises his right hand to take the oath and huge waves of camera shutters fire off.

John Roberts. "Nobody ever went to a ballgame to see the umpire." Judges are umpires. They need to be "modest" about what their role is. The rule of law. "A government of laws and not of men." Beautifully said. "I come to the committee with no agenda... I have no agenda, but I do have a commitment." He's saying exactly what a judge should say. "It's my job to call balls and strikes and not to pitch or bat." The fields of Indiana represented for him "the limitless possibilities of our great land." You know if I were stranded in the cornfields of Indiana, I would not have perceived limitless hope. And who knows if he really did, as opposed to thinking get me the hell out of this mindnumbing flatland? But it's a pretty (albeit dubious) image. Hey! Suddenly, he's done! The coolest thing about that is how short he made it!

And the committee shuts down until tomorrow.

ADDED: For Day 2 TiVo-blogging, go here.


Allah said...

I keep trying to watch but I can't take more than five minutes at a spell. There's nothing more obnoxious than watching Senators grandstand, especially Leahy and Fat Teddy.

Freeman Hunt said...

Wouldn't it have been entertaining if Roberts really had eaten two pickled herrings in front of the committee? (Your comment about Hatch's accent made me picture that.)

MrSpkr said...

I was impressed that Leahy could read the preamble without breaking into the Schoolhouse Rock lyrical beat.

Guess you had to be a child of 1970's Saturday morning cartoons to understand.

I'm blogging it also -- was live blogging, but had a business lunch interrupt it. It seems to me that today is so much Kabuki theater. Lots of posturing (anyone else crack up at Joe Biden's suggestion that Roberts needs to convince the Senate he won't be a judicial activist?) and little meaning.

Tomorrow should be more entertaining.

Ruth Anne Adams said...
This comment has been removed by the author.
Brendan said...

I noticed that Roberts' kids were very well dressed again. Time for the Washington Post to attack.

Tom said...

I'm just a bill,
yes I'm only a bill,
and I'm sittin' here on Capitol Hill.

Gotta love those Schoolhouse Rocks.

Lolly, Lolly, Lolly get your adverbs here....

bill said...

What I’d love to see with Congressional hearings and their 15 minutes of blecturing (blustery lecturing) concluding with a leading, yet indecipherable question, is for the accursed to interrupt with “Excuse me, but do you have a question for me or do you just enjoy listening to yourself? Because my legs are starting to cramp and if you’re planning on being awhile longer, I think I’ll go for a stretch in the hallway. Anyone need anything from the vending machine while I’m out? I think I saw Zagnuts.”

Can you be held in contempt of Congress if their actions are, you know, contemptible?

Bruce Hayden said...

A slightly different take on the hearings from scotusblog. Dare I say ever slightly more differential.

Lars said...

Roberts did well. Right now Kennedy et al are frantically searching for pubic hairs.

Bruce Hayden said...


Attorneys are relativeley good at deferred gratification to get through law school, etc. Judge Roberts has had to be quite good to get where he is now.

But this is probably the last time in his life that he will have to defer to anyone except his wife (and possibly parents?).

I don't expect him to act like some judges and cut off long winded attorneys. But it would surely be within his perogative - just not, IMHO, his nature.

Bruce Hayden said...


Not quite sure how Judge Roberts could have done badly as of yet, except, possibly to fall asleep, or, possibly make faces at some of the bloviations made by some of the esteemed Senators. Tomorrow should give us a better view of him.

Matt said...

Well, he could have delivered an opening statement along the lines of:

"I believe the federal government's power is pretty much unlimited, both in terms of the executive and legislative branches' right to take whatever action they want. And that includes banning abortion. Nyah!"

That probably would guarantee 8 no votes and piss off conservative legal scholars to no end. (As well as making him look like an utterly immature baby.)

That said, it wasn't going to happen.

Mark Kaplan said...

Bill: Can you get Zagnuts where you are? I have to order mine over tne internet.

Bruce Hayden: Being essentially a baby boomer, Mr. Roberts will defer to his children for a long long time.

Ann Althouse: Great work on your part today, I join those who are so happy to read your comments instead of watching this thing on TV.

Jeff with one 'f' said...

I find it striking that the senators continualy fret about the dangers posed by "extremist" justices to things like the "right to privacy" and "choice", as if they were powerless.

If they find these rights so imperiled, why not draft constitutional amendments enshrining them, thus rendering the rights permanently "constitutional"?

Or is that too much work, getting those amendment passed? Or would it be too democratic?


Laura Reynolds said...

Conjunction Junction, what's your function? Hooking up words and phrases and clauses..

Sloanasaurus said...

I agree with Jeff. In fact, I wouldnt be surprised to hear that most conservatives would agree that there should be a "right to privacy" and would support a constitutional amendment for one. What they don't support is the Court creating the right on their own. Many also don't agree that a right to privacy gives someone the right to kill another human life.

WTOTW said...

George Bush won the election, and he won saying quite clearly what sort of judges he would appoint. Bush has now nominated someone with stellar professional qualifications, and the only grounds to oppose him would seem to be ideological. And that's simply not enough.

Those Democratic senators also won elections, many (maybe all) of them on platforms opposing Bush and his nominees. Seems like that's grounds to oppose Roberts (if not grounds to expect that opposition to prevail).

Ruth Anne Adams said...
This comment has been removed by the author.
Coco said...

Coburn's performance is indeed what I was trying to describe in an earlier thread about why I watch C-SPAN - GREAT reality TV! If there's no crying in baseball there is certainly no crying in introductory remarks at a committee hearing. I would never want to watch "Beaches" with him!

I betcha the Daily Show has a field day with this they should. He's low hanging fruit but still...

Matt said...

Also, bear in mind that during his recent election race, Coburn was running around screaming about the plague of teenage lesbians in high school bathrooms in Oklahoma and generally being an attack dog (particularly on abortion issues). That makes his "can't we all just get along!" bit all the stranger.

Coco said...

I agree with the sentiment that under the "to the victor goes the spoils" aphorism that Bush rightfully, and obviously, has the right to select a conservative Justice. I just nit-pick with the idea that Bush told everyone what type of jurist he would select. In fact, I remember him being pretty cagey at the debates on this issue. Although he made his position on the Dred Scott and pledge of allegience cases pretty clear, I think he refused to say anything other than he would appoint someone who wouldn't interject his/her personal views into a decision as that is a job for the legislature and strictly interpret the constitution. WHich I believe is generally what Kerry said as well. So, I don't think he was very clear on that at all.

I still agree in the main with Ann that folks should have known what the "risks" were in voting for Bush since the Kerry team and liberal advocacy groups certainly had the opportunity to spin, and did spin, these comments.

Steven said...

Coco --

What part of Bush specifically naming Scalia and Thomas as his models for future Justices was cagey or not clear?

XWL said...

I'm going to attempt to predict tonight's Daily Show (which, I know, Ann won't be watching):

Look at the bow tie on his son (John Roberts is Gaaaaay)

In his analogy comparing judicial judgement with baseball he mentions pitching and batting and umpiring, but no catching, what does that tell us? (He's Gaaaaay, and a catcher)

Think I'm out of line or exagerating, here is the take from Wonkette on the hearing:

"You'd think all that talk about "pitching and catching" and being "erect" would get him a little more excited" (Wonkette couldn't be expected to listen carefully enough to notice that Judge Roberts never mentioned catching)

Oh, I know they aren't the mainstream of liberal opposition and both basically are comedians, but don't be surprised if WaPo doesn't find a way to make similar insinuations once again (and for the life of me, I have no idea what they are trying to prove).

Pete said...


I don't know if you're from Oklahoma but I am and you've mis-characterized Coburn's election run terribly.

And, hey, what's with this laughing when someone cries? We may be Okies out here but we're sensitive Okies. Is that so wrong?


Matt said...

I'm not from OK, but Coburn (indisputably) made the bizarre "teenage lesbians in bathrooms!" remarks, and certainly (from my vantage) had a strong focus on partial birth abortion. He certainly didn't run as a "Heal the divide" candidate, at least not by my understanding.

MrSpkr said...

Okay -- now I've got ALL those old jingles bouncing through my head.

Thanks, guys!

Oh and matt -- comments about lesbians in bathrooms is relatively mild in Oklahoma politics. I saw much MUCH worse when working some legislative campaigns back in the 90's.

Charles said...

So the most useful thing that happened was a grill cheese was made and consumed. I hope tomorrow will prove as useful.

What do you prefer on your grilled cheese? Or are you a purist?

Dactyl said...

Hi Ann. I started reading your post erroneously thinking that you were quoting the Senators. Therefore I'm stuck with the image of Specter actually admitting to making a grilled cheese sandwich (like they don't have people for that) during the hearing. I'm still chuckling.

As an aside, a reply to Freeman Hunt's comment: I never had to memorize the Preamble in school, as some people did, but I know it for that very reason. Schoolhouse Rock. It's running in my head right now, and probably will be all night. Thanks.

Anna said...

"My hero zero...such a funny little hero..." (grew up on Schoolhouse Rock!)

I fell asleep during the opening statements and just happened to wake up at the beginning of Kennedy's statement...Oh, joy!

I can imagine that the look on Roberts' face was due to the amount of hot air flying around from the pompous windbags who really only wanted to hear themselves pontificate, and of course, give anyone who Bush nominates a very hard time.

Michael said...

I had something to say but now I can't help but think of the whole hearing as being directed by Carl Dreyer. Well, it's as slow as Vampyr, anyway.

I agree about the bullshit line about the limitless possibilities of flat Indiana and what he was really thinking ("I will never have to come here again, except at Christmas"). First of all, Roberts was mostly from northern Indiana, wasn't he? That's like being from New Jersey, not the Wyoming he was describing. Let's dig up his valedictorian speech in school and see if he used the same crap then.

PatCA said...

Todd, I'm with you. I thought it was a really brilliant parody. :)

Caught Roberts' speech on the radio--very Mr. Smith Goes to Washington, and I felt hope for the republic once more, just like the first time I saw MSGTW.

Once knew a lawyer who, when the tide in trial turned against him (usually because of his inept questioning) he would rouse his worried client with Leahy-like We the People speeches. The client's eyes would light up...softened the blow later, I suspect.

Simon said...

"What part of Bush specifically naming Scalia and Thomas as his models for future Justices was cagey or not clear?"

Bush may have been clear, but it's not immediatley clear that he was honest. You can't seriously say that Judge Roberts - whatever his many qualifications - fits the shoes of Justice Scalia or Justice Thomas. A conservative, yes; a smart chap, yes, but not, as far as anyone can tell, an originalist - which how I took Bush's promise to appoint more Scalias and Thomases.

Andrew said...

"Wonkette couldn't be expected to listen carefully enough to notice that Judge Roberts never mentioned catching."

Wankette can't be expected to pay attention to anything with more sublimity than the average scene from Porky's.

Well blogged, Anne.

Cousin Don said...

Uh, it's the US Senate. A Monday NY Times crossword will take them plenty of time.

"Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself." - M. Twain

vbspurs said...


Wait, I'm laughing too much. Let me compose myself.

Roberts has a really intense expression on his face — shots of him are making me think of some of the closeups of Maria Falconetti.

She's known to us Dreyer fanatics as Renée Falconetti, and I know EXACTLY the expression you mean, prompting this commentary before I've read your whole post, Ann.

As Joan of Arc does as she's being grilled by some very decrepit-looking English judges, who throw daggers at poor St. Jeanne d'Arc in looks, so too does John Roberts have such an earnest, beleaguered expression on his face.

Frankly, he looked like he's straining after a nasty bout of indigestion, but then I'd look the same way if I had to hear Ted Kennedy drone on...

Speaking of whom, I see finally Senator Kennedy is energised by these confirmation hearings.

I recall as a teen laughing at him when he looked pained at having to listen to the Anita Hill testimony, thinking, "oh crap, I did the same thing for years too".

Right. Back to read the post.


bonnp said...

Well, I grew up in Illinois (between Indiana cornfields AND Iowa cornfields), have driven often through northern Indiana, and lived for many years in Wyoming. Northern Indiana cornfields bear no resemblance to Wyoming, where you are more likely to find sagebrush than corn and there aren't too many silos. That said, I understood Roberts' reference to the endless cornfields representing limitless possibilities. I immediately thought of the early settlers in this country as they looked at the seemingly enless plains before them and saw only opportunity. And althought Wyoming doesn't resemble Indiana, it does have those wide-open spaces in the east and those big, tall mountains in the west, and the view is often powerful and inspirational---full of possibilities.

For lack of anything else on TV tonight, I've been suffering through the Senate posturing and I can't help but think that they believe we are all stupid.

Ardsgaine said...

bonnp wrote:
I've been suffering through the Senate posturing and I can't help but think that they believe we are all stupid.

Didn't they have it confirmed for them when they were elected?

vbspurs said...

I've finished reading the whole post. Wow, I hope you treated yourself to some Vouvray, because that was a lot of typing/commentating/analysing/yucking over.

Second, more *lolol* for the Feinstein comments about the Budapest monumnet.

And I'm not sure you groaned, but I did when I heard her mention the "Roberts Family here, who must be so proud of you today". She sounded like a very loving Jewish grandmum, about to offer her strapping grandkids some gefilte fish hors d'oeuvres.

But moving on to Judge Roberts' own words:

Nobody ever went to a ballgame to see the umpire." Judges are umpires. They need to be "modest" about what their role is. The rule of law. "A government of laws and not of men." Beautifully said. "I come to the committee with no agenda... I have no agenda, but I do have a commitment." He's saying exactly what a judge should say. "It's my job to call balls and strikes and not to pitch or bat."

Do you know how brilliant this is?

Most people in the US, just folks who aren't Law Professors, or who don't know KELO from Roe v. Wade, understand baseball analogies.

They understand that though the game is played intensely and knowledgeably, taken seriously by all, including the spectators, it also requires a fair hand at judging stuff that happens on the field.

The most one can ask is that the person is aware of that, and takes his job seriously enough so that he's competent, and can call a good game.

For those of you scoring at home, and you know who you are, John Roberts just scored an inside-the-parker with the "folks" with that analogy.

Good on him.

I can't wait for tomorrow.


Steve Donohue said...

There's an awful lot of Indiana-snark coming in the comments. And normally I'd be more than happy to join in, but are the never-ending dairy fields of Wisconsin that much more rewarding?

Not that I have much more room to snark-off myself. I'm stuck down in Champaign, Illinois. But at least I'm a Chicagoan at heart.

Cogito said...

I would be crying if I had to sit and listen to the dems bloviate in bad faith for that long.

BoneUSA said...

It's probably trite and cornball by now, but a big joke going around D.C. when I was interning there in 1996 was

Q: What's the most dangerous place to be in Washington?

A: Between Chuck Schumer and a tv camera.

Watching these senators brings to mind Mencken's line "Democracy is the theory that holds that the common people know what they want, and deserve to get it good and hard." But I have to say, what did we do to deserve these gasbags? I guess it's that we voted for them.

Rob said...

I am offended that a fromage-tete such as Ms. Althouse would make light of the flat, corn covered hoosier landscape. Besides, my home State has far more to offer than cornfields. For example, my county has only 20,000 people, but the hog population is 200,000.

Another comment: Ms. Althouse is quite perceptive- Mr. Bayh's appearance is by far his most politically valuable trait. IMHO. While fairly reasonable for a member of his party, he is a semi-empty suit. I have a particular grudge against him for allowing the Indiana State Police, once an excellent police force, to slip badly while he was our Governor.

AST said...

Thank you. Thank you. Thank you.

For reporting this so I didn't have to sit through it myself.

I heard a clip of Schumer's remarks on Hugh Hewitt's program. That guy (Schumer) gags me with his earnest smarminess.

Patrick Leahy is beyond the time in life when a man should be in the Senate. He looks unwell and he has the presence and forcefulness of a man whose lost his glasses.

Even though Hatch is my senator, I'm rarely proud of his performances. I heard him once enthusiastically describe a speech by Gerald Ford at the Republican as "bombastic!" obviously thinking that was a positive quality. His major virtue is that he's not any of the people whom he has defeated over the years.

As for Tom Coburn, your reaction sounds appropriate. I don't know what possesses these dorks. The Republicans need to work harder not to elect wimps.

Milhouse said...

Comments at Neo Warmonger

Bill Dalasio said...

Maybe some of the lawyers here can clue me in on something. My background is in math and economics, so I don't necessarily understand all of the theory in this sort of thing. Still, it seems to me that an extremist jurist could only level a reletively modest amount of damage. By definition (statistically speaking, at least), an extremist, someone whose views were "out of the mainstream" would have to hold views that are held by a very small minority of the population. It would seem that any genuinel extremist judicial interpretation could be fairly easily overruled through the democratic process. Am I missing something here?

Anonymous said...

As Joan of Arc does as she's being grilled by some very decrepit-looking English judges....

My choice for Unintentionally Wonderful Quote of the Day!

bill said...

B Hayden - I was commenting generally on congressional hearings, not specifically on this one.

M Kaplan - I don't know if Zagnuts are available here, just thought it worked better than my first choice, Bugles.

On Coburn...don't know who he is but crying during your opening comments deserves to be mocked and ridiculed. That is just so sad.

bill said...

Question for the lawyers in the room as the questioning begins. As a nonlawyer, I'm curious what y'all would label the best and worst questions from a strictly legalistic point of view.

Which questions do the best to to illuminate Roberts' views on the law? Thanks.

Al Maviva said...

That baseball umpire analogy has the marks of Fred Thompson all over it... A masterful folksy-ism that will play really well with the public. The strategy of addressing the public rather than Pat Leahy is smart, since it bypasses the minority party senators – that’s only fair, since their bloviating made it eminently clear that they don’t care what Roberts says, except insofar as he can provide some negative grist for them to chew on. Besides, there's not way of changing a hard bitten partisan's (like Leahy's) mind.

leaddog2 said...

I am surprised to find that anyone believes that Leahy (or Kennedy, Shumer, Durbin, Biden, etc.) has a mind.

No one has ever found any evidence of such a miracle before now!

Hans Bader said...

Senator Specter misunderstands the Supreme Court's decision in U.S. v. Morrison, which struck down Subtitle II-C of the Violence Against Women Act because domestic violence does not have a "substantial relation" to interstate commerce. (Even Justice O'Connor, whom Specter has cited as a model justice, joined in that decision).

Contrary to Specter's interpretation of the decision, the Court did defer to Congress's FACTUAL findings in Morrison that domestic violence has a big QUANTITATIVE effect on the national economy.

But that wasn't the issue. The issue was whether it was sufficiently closely-linked to interstate commerce in a QUALITATIVE sense.

As Judge Niemeyer observed in the Fourth Circuit decision affirmed by the Supreme Court, the test for whether something substantially affects interstate commerce under Lopez and Morrison is akin to proximate cause, a LEGAL determination for judges, not just a FACTUAL determination for Congress.

Since domestic violence is more likely to occur in noncommercial settings like private homes, and less likely than most forms of violence to occur in channels of commerce or businesses, it has no qualitative relationship to commerce, much less a "substantial relation" to interstate commerce.

That is true even though, like most serious social problems, it has a very indirect but also very real QUANTITATIVE affect on commerce.

The Court respected Congress's findings about the indirect effect of domestic violence on commerce and did not question their accuracy.

But those findings were still not enough, legally speaking, to uphold the statute, since they did not suggest any qualitative relationship. The findings thus were just one element among the several elements needed to uphold the statute. And the other elements were missing.

As for the alternative theory underlying the law invalidated in Morrison -- the Fourteenth Amendment -- the Fourteenth Amendment only reaches state, not private discrimination.

And as the amicus briefs for the prevailing respondents showed (citing federal data), states do not discriminate against women in handling domestic violence (indeed, they handle domestic violence against women as diligently, on average, as other crimes, although there is some evidence that male victims of domestic violence get short shrift -- the federal Bureau of Justice Statistics' survey of large urban counties showed that the unproked killing of a husband by a wife only results in an average sentence of 7 years, compared to 17 years for the killing of a wife by a husband).

Hans Bader said...
This comment has been removed by a blog administrator.
Hans Bader said...
This comment has been removed by a blog administrator.
Hans Bader said...

In my 10:13 a.m. post, I spoke of the fact that an unprovoked killing of a husband by a wife results in an average sentence of only 7 years, compared to 17 years for an unprovoked killing of a wife by a husband.

But I misspelled "unprovoked" as "unproked," rendering it "unproked killing."

JM Hanes said...

Actually, "hornbook law" comes from a list of colorful phrases compiled by legal eagle legislative assistants for use in congressional hearings by Senators competing for lead soundbyte in the MSM. Old hands know that repeating such phrases multiple times in slightly different contexts (regardles of relevance) maximizes quotability. Indeed, "hornbook law" won Senator Leahy the coveted NPR audio clip this afternoon. Sam ("just a country lawyer") Ervin is often credited with inventing the genre, but its pedigree actuallydates back to classical antiquity, where Julius ("et tu Brute?") Caesar's catchy question has outlived any other Senatorial interrogatory before or since.

SteveR said...

Until just now (and thanks to Google and Google Images) I had never heard of Maria Falconetti, but By Gosh, you're right!!

Thank you for your insightful blog.