January 14, 2006

"Nobody really cares what I think."

Did anyone still watch the Alito hearings yesterday? It seemed so over. Surely, we lawprofs ought to be interested in hearing what lawprofs have to say, you might think. But, no, actually, no. We're so used to what we think that we feel we already know what will be said.

Nevertheless, I'm a blogger lawprof, so I will scan the transcript as a service to you, the reader.
[Professor Laurence] TRIBE: I'm not here to endorse the nomination of Judge Alito, as I did with my most recent testimony before this committee on a Supreme Court nomination with Justice Kennedy.

I'm not here to oppose his nomination, as I did several months before that time with Robert Bork. And I'm not here to lecture the committee on its responsibilities or its role. I don't think that's my role.

[Criticisms of Alito omitted.]

SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?

TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.

SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?

TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation.
Everyone's always "troubled" these days. Come on, he's opposed to Alito, but the opposition works best if you can oppose from within the humble law professor character. Does anyone actually buy that?

Well, no one's watching on Day 5 anyway, so what they hell? It's an attractive pose, isn't it? And gems of frankness still pop out, like the one I've extracted for the title to this post.

The Senators rush the professors along and bear down on Tribe in particular for going over the time limit. Later, at the end of the day, Specter and Leahy luxuriate in unclocked minutes babbling to each other, somewhat charmingly:
SPECTER: [L]et me say that it has been a pleasure to work with Senator Leahy and I think our collegiality has been demonstrated in many ways, mostly by all of the pictures taken where we're huddled together so that our voices don't carry too far beyond, and also with a sense of humor.

In the bad old days when I had no hair, the only way that Senator Leahy and I could be told apart was by the color of our ties.

LEAHY: You're still wearing the red tie?

SPECTER: And I'm glad to have some hair....

There's a Latin maxim, "The exception proves the rule."

There might have been four minutes in the hearing when it wasn't dignified, but we worked through that as well.

About the only thing the respective parties have been able to agree to on this whole proceeding is that Senator Leahy and I have functioned collegially and have produced a full and fair and dignified hearing.
Ah, thank God, it's finally over! I waited so long for Supreme Court appointments, and I was so excited about finally getting to some hearings. But, wow, the drudgery of following these things!

Will there be another anytime soon? If so, how about not going on for 5 days? It's just crazy. The nominee and his family are subjected to a physical endurance test, and then -- it's not really that sad -- no one wants to listen to the lawprofs.


reader_iam said...

And here I always assumed that Tribe was harboring under the delusion that everybody cares what he thinks, or at least should.

A gem, indeed. I thought I was just hearing things yesterday as I happened to quickly pass through my kitchen, where the hearings droned on all day for the edification of the appliances, when Tribe was testifying. Good to get the confirmation that those words really did pass his lips.

Jake said...

Confirmation hearings are a pure form of Kabuki Dance.

Everyone knows the story. Everyone knows all the characters and what they will say. And everyone knows how it will end.

I just wish they would wear wild and colorful costumes to make it more interesting.

PatCA said...

I hope Justice and Mrs. A are lolling by a pool somewhere very balmy with their family beside them.

PDS said...

Like a ridiculous law weenie, I sat and watched C-Span last night until the bitter end, including watching a baseless diatribe against Judge Alito from a former law school classmate. I half considered sending him a letter letting him know what I thought of his efforts, but now believe it would be pointless on many different levels. Let him have his cocoon, and I'll stay in mine. Seems sort of sad, really.

Sissy Willis said...

Mainly it's distinguished gentlemen and gentleladies from the left side of the aisle who are not only "troubled," but "puzzled" and "disturbed," early and often.

Anonymous said...

You know what troubles me? Why some plagiarists, like Tribe and Biden, are given any credibility.

bearbee said...

"...no one wants to listen to the lawprofs."

I would if they had included Ronald Allen who could have commented directly to the committee his opinion of its collective intellect (I know, I know I already linked to this before):

"RONALD ALLEN: I think it's somewhat different. I think they should ask better questions.

The problem isn't that they were demanding answers; the problem is they were unsophisticated in their questions.

In both this case and the Roberts case it was almost like an uneven fight where the individual nominees were so far better than the collective intellect -- at least of his skeptics, i.e., in these cases the Democrats.

There were lots of interesting questions here that could have been probed that didn't - that wouldn't get too close to individual decisions of cases that might come up having to do with the nature of precedent, interpretive theories, how you handle problems that simply weren't thought of by those who drafted the Constitution and the like.

None of this was there. And it was just lack of preparation or lack of sophistication or lack of knowledge on the part of the senators, frankly.

So I think it's not -- I don't think it is appropriate to criticize the process from the point of view of this nominee not answering questions. I think it's the failure of the senators to take full advantage of what the opportunity presented."

Mark Daniels said...

Actually, I watched more of and got more from the fifth day of hearings than of the previous four. The first four days were the predictable sham dance performed for various constituencies and political reasons. What we heard yesterday was more authentic and less politically-charged. As a consequence, it better evoked not only Alito's character and biography, but his qualifications.

Back when Arthur Schlesinger, Jr.'s hagiographic account of the Kennedy Administration, A Thousand Days, was published, he and his book were the subject of a TIME magazine cover story. I remember that, though there was less skepticism about the purportedly saintly-attributes of JFK in the wake of his assassination, there were nonetheless those who questioned the appropriateness of such hero-worship-as-biography. Someone--forty-one years later, I can't remember who--was quoted as saying that if they had to choose between a biography that extolled a person and one that tore that person down, they'd choose the former. The point being that admirers, whatever faults their accounts might have, take the time to more clearly know the person about whom they write and try to understand their motives and beliefs. It then becomes the obligation of an informed reader to question and consider other perspectives.

I bring this up because in listening to Alito's former clerks, supervisors, and fellow jurists yesterday, we got a different view of him. One was forced to ask, "What sort of person evokes this kind of loyalty and appreciation?" Not a perfect one, to be sure. But also not the monster that those who cherry-pick his record say he is.

I firmly believe that the ideology of judicial nominees is and ought to be decided when we cast our votes on the second Tuesday of November every Leap Year. It isn't headline news that presidents nominate judges who are broadly sympathetic to their views of the Constitution and of the law to the courts. Generally speaking, it seems to me that unless some previously unknown affinity for unconstitutional notions, an allegiance to an ideology of hate, or ethical problems are surfaced, judicial nominees, irrespective of party or ideological allegiance, ought to be confirmed. I think that Alito will be, though by a narrower margin than John Roberts enjoyed.

Mark Daniels

ALH ipinions said...


I actually saw the exchange between Specter and Tribe. And I thought the way Specter cut through Tribe's patently fatuous claim of objectivity was brilliant.

Indeed, when Specter was forced to cut Tribe off for exceeding the alloted time, I thought: too bad the professor never got to the scholarly and objective part of his testimony.

Connecticut Cranky said...

"Everyone's always 'troubled' these days."

Yes, they're troubled in between the times they're "concerned," but don't forget those other occasions when they're "shocked" and even "appalled." Then they must "question," so that when they hear the answers they can be "perplexed" or even "confused."

We're less likely to see the grand theatricality of political rhetoric offered up in past centuries mostly because we have television nowadays, so the phonies (politicians, reporters, others who put themselves before the public) don't have to play to the rafters. Instead, the voice rises in pitch a bit as the eyebrows descend (to portray righteous indignation) or lowers in pitch as the eyebrows rise (to portray seriousness or phony sorrow). The forehead wrinkles in either case, but I suppose in different ways. See the rhetoritician enough, and you get to know the individual's personal variations, but the rhetorical grammar I've described above seems to cover about 60 percent of it.

Simon Kenton said...

Connecticut Cranky -

Having shot my tv many decades ago, I see television shows and news only very occasionally. There are definitely at least 3 visual grammars at work. There is the facial and gestural set of standard Americans living life, the set used by very good film actors, and the set used by television 'personalities.' (Referring to the inhabitants of your tv as 'personalities' is the sort of savage irony that would have been good for a little reflection back in our dope-smoking days.) What you are describing is the mode for newscasters and tv drama actors. Politicians have sophisticated themselves (in the scientific sense); they've deliberately chosen the tv personalities as their models. Stepping away from the tv for a few years, and re-approaching these 'people' with a kind of enforced, quasi-anthropologist perspective, makes it clear how jejune their behavioral suite is. You can imagine them lined up in front of a wall-size screen at retreats (funded by Abramoff, of course) with their coaches, who are saying, "OK, OK, we're going to do 'concern' until you cretins get it right. Now, once and for all, watch Brokaw's FOREHEAD. Can't you boobies recognize mastery when you see it?"

PDS said...

Simon: glad to see you surface again.