Taking a Grandstand
Day two of the Roberts hearing is full of speechifying senators--with a question or two thrown in for good measure.
YESTERDAY I predicted that the Roberts hearings might turn out to be a free televised seminar in constitutional theory. Boy was I wrong. Tuesday's question and answer session revealed that members of the Senate Judiciary Committee currently suffer from a severe bout of jobidenitis--the inability to ask a serious question without first delivering a two- to three-minute self-indulgent preamble. Monday was for opening statements, and committee members will deliver closing remarks probably sometime next week, providing senators the opportunity to announce their positions on Hurricane Katrina (they're against), equality, constitutional law, and so forth. But Tuesday and Wednesday were supposed to be about the nominee. Tuesday and Wednesday were supposed to be about his judicial philosophy and temperament. Instead, we found out that Sen. Biden wrote the Violence Against Women Act, that Sen. DeWine thinks the First Amendment is important, and that Sen. Schumer is deeply worried about a few professors at the University of Chicago Law School.
Now it's true that, again and again, Roberts declined to answer questions regarding unsettled law and cases soon to appear on the Supreme Court's docket. On this, for the most part, committee Democrats--Sens. Herb Kohl and Diane Feinstein in particular--were deferential. They respected Roberts's right to decline to answer a question. But Roberts did offer more than a few opinions on what he thought was settled law--Marbury v. Madison, to name the most elementary example, but also Brown v. Board of Education, Griswold v. Connecticut, even Roe v. Wade and Planned Parenthood v. Casey. And he also offered his opinions about the role of judges in a democratic polity, about his work experience, and about the appellate process in general. So there was definitely room for reasoned discussion on a variety of topics.
But what transpired wasn't a discussion. It was a series of speeches with a few questions thrown in here and there. Biden went on for eight minutes before asking his first question: "Do you agree that there is a right to privacy to be found in the liberty clause of the Fourteenth Amendment?" (Roberts agrees.) According to the day's New York Times transcript, DeWine spoke for 15 paragraphs before asking Roberts to "just talk in general about when you see fact-findings by Congress, when we have held hearings, when we have established the record, how do you approach it, what are the tools that you use, Judge, based on the precedents and based on what you think the role of the judge is?" Roberts's answer also lasted awhile, but in the end it was easier to understand than the original question. "The courts need to be very careful," he said, ". . . to make sure that they're interpreting the law and not making it." Alabama Republican senator Jeff Sessions was polite and well-spoken, but he spent the first several minutes of his time simply repeating what he had told the audience yesterday. Later Sessions spent five minutes reading aloud from a recent Atlantic Monthly article by Benjamin Wittes. The Wittes piece is worth reading, but Sessions failed to mention what it had to with John Roberts. At one point South Carolina Republican senator Lindsey Graham broke out into a jeremiad against associate justice Ruth Bader Ginsburg, which morphed into an encomium of Roberts, which further morphed into a question three minutes later.
Both the Republican and Democratic senators were self-indulgent. But the Democrats were also occasionally belligerent. They would interrupt Roberts's attempts to answer their several-minute-long questions. When Sen. Kennedy brought up the fact that the Reagan administration had disagreed with him about the Voting Rights Act, Roberts tried to respond. "Well, Senator," he said, "You disagree--" But Kennedy cut him off, four times in all. Or rather, four times with regard to that particular moment of questioning; a few minutes later, Kennedy was interrupting Roberts's answers again. When it comes to jobidenitis, of course, patient zero is the senior senator from Delaware, who similarly interrupted Roberts, on several occasions. And toward the end of the hearing Sen. Schumer interrupted Roberts's attempt to evade answering a question on the Constitution's Commerce Clause. "Excuse me," he said, and launched into tirade against the so-called "Constitution in Exile" movement. Roberts listened in silence. He had learned the first lesson of Congressional Q&As: the Q is primary, and the A an afterthought.
Matthew Continetti is a staff writer at The Weekly Standard.