Let's look at Ginsburg's language: "I will not be replaced until a new president is installed."

That is the form of her dying wish, as told to us by her granddaughter Clara Spera, who is a fellow at the American Civil Liberties Union. It is hearsay, and we don't know for certain that Ruth Bader Ginsburg said those words at all — though of course we assume that the basic idea expressed is something that she did indeed wish. But did she use the verbs "replaced" and "installed"? Is that Spera's paraphrase?

The words sound wrong to me, especially "installed." We normally speak of electing a President. If you look up the words "install" and "president" in the New York Times archive, the relevant hits are about colleges and professional organizations "installing" a president. There, a president is chosen by an elite group, not by the people.

I read through a long page of old NYT headlines and finally arrive at one that looks like it may be a political leader: "Silurians Install President" (April 16, 1963). Who are Silurians?! Is Siluria some country that has escaped my attention all these years?



Click to enlarge and clarify. Key line: "The Silurians is an association of men who have been on New York City newspapers for 25 years or more." Another professional organization, the sort of thing that installs its president.

You see my point. It is a strange and revealing word choice. And if there's one thing you can say about Donald Trump, it's that he was not installed. The 2016 election was a populist expression that gobsmacked the elite. If Hillary had won, it might make some sense to declare that she was "installed."

Ah! And now you see a motivation for Ginsburg's use of "installed." If Biden wins — which is what Ginsburg hoped for (and "a new president" implies) — it really is more of an installation. The Democratic Party elite have been working to install him. It's not his own doing. It was a reaction against the populist expression that had Bernie Sanders winning in the primaries.

When I hear "installed," I think of appliances — dishwashers, refrigerators — that need to be positioned and hooked up by licensed professionals. That resonates with the Biden story... except that no one would install an appliance so superannuated and marginally functional.

And I don't like the use of the word "replaced" either. Ginsburg filled a seat, seat #6, established February 24, 1807. She was the 13th person to sit there. "I will not be replaced until..." suggests a sense that there ought to be a new version of her, someone who will carry on as she would have. But she took over that seat from Byron White. Was there any sense that she was supposed to be like him? She certainly wasn't. The seat belongs to all of us. Just as we control who is elected President, we have a collective interest in that seat, which now needs to be filled.

Justice Ginsburg exercised her own will by holding on to the seat despite grave illness, and there was some ability to choose who would take her place, but the force of nature kept her from completing that task. The Constitution gives the appointment power to the President, and a Supreme Court Justice cannot grab that power from him.

The Constitution has its complicated method for determining who will be President. I won't elaborate on it here, but it does have something to do with what we, the people, want. The last time we cranked through the mysterious process, Trump popped out. It was very weird! But he is the President, and a Supreme Court Justice has vacated a seat.

We can make political arguments that Trump should wait and let us make filling that seat an issue in the election. I'd love to see Trump and Biden debate and give us the question: What kind of Justice we want?

Biden was chair of the Judiciary Committee for so long. Let's grill him about what he did to Robert Bork and Clarence Thomas. Let's ask him to show us his list of potential nominees as President Trump has. I think that would be great. But I also think that if the tables were turned and a Democratic President had a Democratic Senate, we'd get the nomination and confirmation quickly and without fussing about inferred principles that have nothing to do with the text of the Constitution.

ADDED: Wikipedia: "The Silurian is a geologic period and system spanning 24.6 million years from the end of the Ordovician Period, at 443.8 million years ago (Mya), to the beginning of the Devonian Period, 419.2 Mya. The Silurian is the shortest period of the Paleozoic Era.... A significant evolutionary milestone during the Silurian was the diversification of jawed fish and bony fish."



But also: "The Silurians are a race of reptilian humanoids in the long-running British science fiction television series Doctor Who.... The first Silurians introduced are depicted as prehistoric and scientifically advanced sentient humanoids who predate the dawn of man; in their backstory, the Silurians went into self-induced hibernation to survive what they predicted to be a large atmospheric upheaval caused by the Earth capturing the Moon."



ALSO: From the OED entry, "install":

1817 S. T. Coleridge Biogr. Lit. I. iii. 60 It is said that St. Nepomuc was installed the guardian of bridges because he had fallen over one, and sunk out of sight....

"So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional."

Writes Alan Dershowitz, surprising me (and I taught the constitutional law relating to impeachment for many years). He writes:

Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way:

"Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis."

Justice David Souter, a George H. W. Bush-appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.

Here's the case he's talking about Nixon v. United States. — about a federal judge named Nixon who challenged the procedure the Senate used to convict him. All of the Justices rejected Nixon's attempted appeal to the judiciary. The Souter and White opinions were concurring opinions. The majority opinion written by Chief Justice Rehnquist (and joined by Stevens, O'Connor, Scalia, Kennedy, and Thomas) stressed the "textually demonstrable commitment" of the issue to the Senate, which is given the "sole Power to try all Impeachments." (The House is given "the sole Power of Impeachment.") Even though that case was about a judge, the Court took into account the special need for finality that would exist in the case of a President:

Why Gordon Smith hates reading Supreme Court opinions.

"The first sentence of Free Enterprise Fund v. Public Company Accounting Oversight Board reads: 'Our Constitution divided the "powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha , 462 U. S. 919, 951 (1983).' We needed a secondary source citation for that proposition? Or maybe the Chief Justice used the quotation for the original way in which Chadha framed the idea?"

I feel your pain. But as a lawprof who teaches Chadha every year, I've got to observe that the idea that there are 3 defined categories was controversial and fought over in that case. Read Justice White's dissenting opinion:

[T]he wisdom of the Framers was to anticipate that the Nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles. This was the spirit in which Justice Jackson penned his influential concurrence in the Steel Seizure Case:

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government."

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 635 (1952).

Burger had to protest that he was not relying on "empty formalities." I'll bet most law professors teaching separation of powers present Jackson in a much better light than Burger.

The idea that are "three defined categories" of power is not too obvious to require support from case law. The case law itself shows that.

"We have the abiding conviction that the death penalty... is an excessive penalty for the rapist who, as such, does not take human life."

So wrote Justice White in Coker v. Georgia, and this week, the Supreme Court takes up the question whether the death penalty could nevertheless be constitutional when the victim is a child.

Those facts alone are a powerful argument that executing someone for rape would violate the Eighth Amendment prohibition against "cruel and unusual punishment," argue lawyers for Louisiana death row inmate Patrick Kennedy. The 43-year-old Kennedy was convicted of raping his 8-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery.

Coker was decided in 1977, just before Americans began to focus very seriously on how harmful rape really is, and White's recounting of the facts reflects the culture of that earlier era:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga. on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a "board," he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying "you know what's going to happen to you if you try anything, don't you," Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.

Mrs. Carver was unharmed. It's hard to imagine any American judge today ending that paragraph with that sentence.

It took Chief Justice Burger in dissent (joined by Justice Rehnquist) to tell us that Mrs. Carver, whom Justice White called an "adult," was only 16.

Hugh Hewitt talks to Clarence Thomas about religion, Jeffrey Toobin, blogs, jihadists, Black Power, Anita Hill, George Bush....

1. Does Catholicism affect his judging? Hugh Hewitt asks Clarence Thomas. Hewitt notes that Chicago dean Geoffrey Stone of Chicago has said that Catholicism infused the the Court's recent "partial-birth" abortion decision. Answer:

Oh, no. In fact, it works just the opposite. My view is simply that the important thing that it pushes you toward is adherence to your oath, which is to judge impartially. And my view is once you start sort of putting your personal beliefs and opinions into the law, or into the Constitution, you cease to have legitimacy, and I don’t think you should be on the Bench. Now I find that fascinating, though, that people would say things like that, and in the same breath, what I get, is the criticism that I don’t judge as a black judge, you know?

I’m supposed to somehow include my race in my judging, but the religion, you don’t include in your judging. I don’t think you should include either in your judging, and I don’t. And in sixteen years on the Bench, well, I’m one week short of sixteen years. But in the almost sixteen years I’ve been on the Bench on the Supreme Court, I have never done that. And in the more than sixteen I’ve been a federal judge, I have never done that.

2. Thomas loved Justice White:

I just loved the way Byron White conducted himself. I love the fact that he felt that the job was important, he felt that the Court was important, that the Constitution and our laws were important, but he wasn’t. that he was there to do his job and go home. And that’s what he did. He was just a good man.

3. Has he read "The Nine"? No, and he won't, but he knows Hewitt didn't like it. Hewitt says he thought Jeffrey Toobin was "very unfair" to some of the Justices, the way he made the Court — after Bush v. Gore — look "dysfunctional," with "bitterness is going on and people are crying and crushed." Thomas:

I didn’t see anybody crying. And the last I can remember is that after we announced the opinion, we all went upstairs and had lunch.

HH: He writes in there that the Court’s embarrassed by Bush v. Gore. Is that fair?

CT: I haven’t seen it (laughing). Look, I suffer from the disadvantage that I’m there every day.

HH: (laughing)

CT: I mean, this would all probably make more sense to me if I wasn’t there. I’ve not seen any embarrassment, I haven’t seen any dysfunctional, any evidence that the Court is dysfunctional. And so I can’t, I really can’t comment on something that’s not happening.

4. Hewitt asks Thomas if he reads the blogs! He says "no," then backtracks":

No….some of them. You know, occasionally I’ll read something, but not that much.

HH: And do your colleagues? Or are they still practicing Supreme Court jurisprudence the old fashioned way, via the briefs and not public opinion?

Are the lawprof blogs really "public opinion"? This gets Thomas off the subject of blogs and back to the denial that he lets public opinion affect his decisions. But the law blogs contain legal arguments. Sometimes...

5. Hewitt asks Thomas if he's "aware of the war," which seems like a ridiculous question, but what he means is does the knowledge of the war affect his judging. But then, Hewitt poses a really insightful question:

HH: I was…when I was reading My Grandfather’s Son, I had an unusual question that I wrote down. Do you understand the jihadists who are these angry, young men, who are locked out of opportunity, who suffer discrimination of the worst sort, and who really have nowhere to go except into this sort of conflict?

CT: Well, I can’t say that I understand them. I do know that for example in this country, and I make this point in the whole portion of the book in 1968, when I talk about being drawn into this whole notion of black power, and that is that you know, when you feel locked out, you do gravitate toward things that feel, that seem empowering. At least that’s the way it was for me. I can’t speak for others. And so this black power notion made you feel, it was invigorating, and it made you feel empowered. And it could also be debilitating, as I found out later, or self-destructive. But I can’t speak for them, but I know in my own case, it was sort of something similar to that, but not nearly as, I guess, as universal.

6. And Hewitt's got a theory about Anita Hill:

HH: I want to try out my theory on you, and maybe you can comment or not, but that she had told little lies to explain failures that got out of hand, and she had to defend them. Does that make sense to you?

CT: That makes sense, but you know, again, I can’t, I have not gotten into whether or not…I could speculate, but I think it would probably, it would be remiss if I did so.

We don't get to hear his speculation, of course.

7. Hewitt asks him if he likes George Bush:

I admire anybody who stands up and leads. Now you can always disagree with a person here or there, but I admire anybody who gets in a position and actually tries to lead.

There's some faint praise!

"Where’s the Fairness Doctrine when you really need it?"

Asks Boston Herald columnist Howie Carr as he lashes into John Kerry for wanting to resurrect the loathsome "Fairness Doctrine":

How come no one outside Massachusetts ever heard about the “16-point buck” he claimed to have had between the crosshairs on the Cape? How about how he claimed to have run the Boston Marathon but couldn’t recall the year?

What about the condo flipping? What about the Bob Brest Buick? Or the fact that George Bush actually got higher grades at Yale than Kerry? What about all his free rides on the Florida S&L bandido’s private jet back in the early ’90s., pre-Mama T? How come most voters still don’t know any of these stories?

Carr's point is a familiar one: liberals bitch about right-wing radio but never acknowledge the liberal bias of mainstream media, especially NPR. But, oh, how he goes after Kerry. Delicious!

Now, Kerry's whiny nonsense provoked a satisfyingly quick smackdown as the House voted 309-115 for a bill that would keep the FCC from doing what it hasn't even made a move to do. We did have some commentators waggling their fingers and saying things like: "Unless broadcasters take steps to voluntarily balance their programming, they can expect a return of fairness rules if Democrats keep control of Congress and win the White House next year." That was threatening enough.

Looking for a link for the House vote, I started with a search in the NYT, which, it turns out, has written nothing about the recent talk about the Fairness Doctrine.

In fact, the NYT hasn't mentioned the Fairness Doctrine since November 2004, where it appeared, appropriately enough, in an obituary (TimesSelect link):

The Rev. Billy James Hargis, a fiery evangelist and anticommunist preacher who founded the Christian Crusade and reached millions in an international ministry that used radio, television, books, pamphlets and personal appearances, died on Saturday at a nursing home in Tulsa, Okla. He was 79....

At the height of his popularity in the 1960's and 1970's, Mr. Hargis -- a shouting, arm-waving, 270-pound elemental force whom Oklahomans called a ''bawl and jump'' preacher -- broadcast sermons daily or weekly on 500 radio stations and 250 television stations, mainly in the South, and in other countries. He traveled almost constantly to deliver his Christian and anticommunist messages, wrote 100 books and thousands of articles and pamphlets, and published a monthly newspaper....

Another case produced a landmark court decision and sharply cut Mr. Hargis's broadcasting empire. He was accused by Fred J. Cook, a journalist, of unfairly maligning him in a radio broadcast. Mr. Cook sought free air time to reply under the Federal Communications Commission's fairness doctrine. A radio station in Red Lion, Pa., sued, saying its First Amendment rights would be violated. But the Supreme Court in 1969 upheld the constitutionality of the fairness doctrine, and many stations thereafter were less inclined to broadcast controversial programs.

Here's the old Red Lion case for your non-edification. I was going to quote something from it, but there's no inspiring dissenting opinion, and it's a rather dull tract by Justice White, resting heavily on the scarcity of the airwaves and the need for the government to regulate (to avert cacophony).

The death penalty for rape of a child.

Five states have authorized the death penalty for the rape of a child:

In 1977, the Supreme Court ruled that the death penalty could not be imposed for the rape of an adult woman. The penalty was, the court ruled, disproportionate to the crime and therefore forbidden as cruel and unusual punishment under the Eighth Amendment.

"Life is over for the victim of the murderer," Justice Byron R. White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."

The defendant in that case, Ehrlich Coker, escaped from a state prison in Georgia where he was serving time for a murder and two rapes. He soon raped another woman in front of her husband. He was sentenced to death for that last crime.

Dissenting from the majority decision to overturn Mr. Coker's death sentence, Chief Justice Warren E. Burger wrote that the ruling "prevents the state from imposing any effective punishment upon Coker for his latest rape."

... In recent decisions barring the execution of juvenile offenders and the mentally retarded, the court took careful stock of state laws and trends in state legislatures to evaluate whether a societal consensus existed to permit or bar capital punishment in given classes of cases.

Trey Walker, chief executive assistant to Attorney General Henry McMaster of South Carolina, said in an interview yesterday that "there will be more and more" laws making sex crimes against children capital offenses.

"This is something the Supreme Court takes into account," Mr. Walker said. "There is not much doubt that this law would be upheld and found constitutional."

In Coker, Georgia was the only state with the death penalty for the rape of an adult. The case largely preceded the very intense political activity aimed at making people take rape much more seriously than they had before. Here's Justice White's description of the rape:

Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.

Mrs. Carver was unharmed. How many law professors have read that line sarcastically in class? I know I have. I can't imagine White writing like that 10 years later, after all the discussion of rape that took place in that time. Brownmiller's "Against Our Will" was published in 1975 and the author was one of a collection of women who were named Time magazine's "Persons of the Year" in 1975, two years before Coker, so I still have to say that the Court, at the very least, had a tin ear. Even when you're striking down the death penalty, the convention is to show great respect for the suffering of the victim. But Mrs. Carver was unharmed. Really, that belongs on the list of worst sentences ever written by a Supreme Court Justice.

So Georgia's anomalous law made it easier to strike down the death penalty for rape of an adult. What happens now as more and more states adopt the death penalty for the rape of a child? The public understanding of the harm to children has grown over the years, as has the conviction that persons who commit this crime are hopeless and even inhuman. You may say that you think the Constitution should not be interpreted to take account of the current understanding of what is "cruel and unusual," but the Justices who agree with you can be counted on to accept what the states are doing now. What should the Justices who go by "the evolving standards of decency that mark the progress of a maturing society" say about the death penalty for child rape?

Consider the unintended consequence: authorizing the death penalty will stimulate sympathy for child rapists. Death penalty opponents will be motivated to paint a strong picture of the rapist as a pitiable creature with a terrible mental health problem.

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 hearings 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.

Predicting the Rehnquist retirement.

Within an hour of hearing, last week, that O'Connor was resigning, I wrote this about the potential for a Rehnquist retirement:

I think we should still expect the Chief Justice to retire and see the retirement of O'Connor as a sign that the retirement is more likely. I know in the past Justices have waited a year to let the attention be given to another retiring Justice -- at least that was the case when Justice Blackmun retired one year after Justice White. But that was back at a time when there were a lot of retirements in succession. I think that now, with all these long years without a vacancy, processing two nominees together would help the transition.

The political arena is going to go absolutely wild even over one new Justice, and it seems to me that having two to confirm at once would be a way to control and manage the emergent hysteria. There would be more leeway in political negotiations with two vacancies, and less attention to the very specific interest in replacing the first woman with another woman. And we could have one crazy summer instead of two. Whether easing the political battle is a factor the Chief would or should take into account is another matter.

From William Rehnquist's personal perspective -- not that it's for me to say -- it would seem that he's lived with and accommodated himself to a familiar group for so long, that it would be difficult, especially for an older, ailing person, to deal with a newcomer. Perhaps not. Perhaps it would be energizing to welcome a new colleague, a fresh, young ally. Frankly, if I were old and ailing, I might want to stay in the thick of stimulating, new experiences.

What does the O'Connor retirement suggest about a possible Rehnquist retirement?

Orin Kerr has a bunch of questions on the occasion of the O'Connor announcement. Here are the related questions #3 and #4:

3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?

4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.

I think we should still expect the Chief Justice to retire and see the retirement of O'Connor as a sign that the retirement is more likely. I know in the past Justices have waited a year to let the attention be given to another retiring Justice -- at least that was the case when Justice Blackmun retired one year after Justice White. But that was back at a time when there were a lot of retirements in succession. I think that now, with all these long years without a vacancy, processing two nominees together would help the transition.

The political arena is going to go absolutely wild even over one new Justice, and it seems to me that having two to confirm at once would be a way to control and manage the emergent hysteria. There would be more leeway in political negotiations with two vacancies, and less attention to the very specific interest in replacing the first woman with another woman. And we could have one crazy summer instead of two. Whether easing the political battle is a factor the Chief would or should take into account is another matter.

From William Rehnquist's personal perspective -- not that it's for me to say -- it would seem that he's lived with and accommodated himself to a familiar group for so long, that it would be difficult, especially for an older, ailing person, to deal with a newcomer. Perhaps not. Perhaps it would be energizing to welcome a new colleague, a fresh, young ally. Frankly, if I were old and ailing, I might want to stay in the thick of stimulating, new experiences.