The Questioning of Judge Roberts

[Brown]

Yesterday, the Senate Judiciary Committee began its "job interview" of Judge John Roberts.

The questioning began with ... no questions. The members of the Committee each made a little speech. Some of the speeches were quite intelligent, others had moments of frightful stupidity. Intelligence and stupidity, it turns out, cross party lines.

Roberts himself ended the day with his opening statement, comparing himself to a baseball umpire. Personally, I like this comparison. It is not unusual for me to use a sports analogy to explain a judicial ruling, although I prefer to use football referees rather than baseball umpires.

Today the actual questioning began. I listened to some of it on National Public Radio, and I plan to review the balance when transcripts are issued later today. What I heard was distressing.

It wasn't what Roberts said that I found distressing. What bothered me was the questioning from Senator Joe Biden.

Biden has aspirations to be president, and perhaps his questions were tainted by a desire to do a little grandstanding.

Biden was emotional. His emotion caused his questions to be laced with anger and insult, and he interrupted Roberts as Roberts tried to answer. At one point, Biden said, "His [Roberts's] answers are misleading, with all due respect." This remark, nows being quoted widely by the wire services, struck me as very ill-mannered.

Now, angry and insulting questions and statements do have their place. (If the one being questioned is reputed to be a hothead, for example, questions like this can be used to expose this trait, or to throw the respondent off balance to judge his poise.) But Biden was out of line. He was unprofessional.

 

[Manny]

But Biden was out of line. He was unprofessional.

So he's auditioning for George Soros and moveon.org?

 

[Anti_Hypeman]

I dont see what the big debate is about. Sooner or later they will have to accept 2 Bush Co nominations before they leaves office and they are only going to nominate sock puppets so does it really matter.

 

[Manny]

Oh, hey, Joe's practicing the Rumsfeld whammy!

 

[Brown]

I dont see what the big debate is about. Sooner or later they will have to accept 2 Bush Co nominations before they leaves office and they are only going to nominate sock puppets so does it really matter.

That's exactly it... except that I'm not convinced that Roberts is a sock puppet. Sure, he has political connections. But he has also demonstrated a respect for the independence of the Court.

Senators--on both sides--ought to ask tough questions and press the nominee on his responses. But there are ways to do that without venting steam and without being discourteous.

 

[Ed]

That's exactly it... except that I'm not convinced that Roberts is a sock puppet. Sure, he has political connections. But he has also demonstrated a respect for the independence of the Court.

Senators--on both sides--ought to ask tough questions and press the nominee on his responses. But there are ways to do that without venting steam and without being discourteous.

I have been watching a bit and I wonder how any substantive question can be asked that might not in the future, or was in the past, subject to a ciurt ruling. All of those are (as Roberts has said again and again) over the line and his comments are little more than an affermation of statements made by the court.

Aside from a good analogy or two, I don't see what can be learned by this process.

 

[Cleon]

I have been watching a bit and I wonder how any substantive question can be asked that might not in the future, or was in the past, subject to a ciurt ruling.

It can't--he won't be able to comment on any substantive matter, and the questioners are fully aware of this. This entire process is sheer posturing.

At least with Clarence Thomas, there was something interesting to focus on.

 

[pgwenthold]

Roberts himself ended the day with his opening statement, comparing himself to a baseball umpire. Personally, I like this comparison. It is not unusual for me to use a sports analogy to explain a judicial ruling, although I prefer to use football referees rather than baseball umpires.

Is that because football referees have the option of not calling an infraction if they decide not to?

In baseball, when the play happens, the umpire has to make the call safe or out, and can't "let them play." There has to be a ruling on the play.

The football ref can spend the whole day only worrying about where to spot the ball on a tackle and whether the receiver stepped out of bounds or not.

Given that the roles of umpires and football (or basketball) officials are very, very different, I am wondering which do you think is a better analogy?

 

[Random]

I dont see what the big debate is about. Sooner or later they will have to accept 2 Bush Co nominations before they leaves office and they are only going to nominate sock puppets so does it really matter.

No they don’t. The DNC could say, “We’re perfectly prepared to have a Supreme Court with just seven justices until 2008 thank you”. Then they could proceed to filibuster every nomination across the board.

Of course, this would require a spine, so it’s never gonna happen until we get rid of those DINOs and get some real leftists into office.

 

[Luke T.]

Roberts' recollection of past statements of his that have been taken out of context, and his ability to recall the context and put it back around those past statements, is simply amazing.

His knowledge of the the background and reasoning behind various court cases seems very good as well.

A couple Senators have really pushed him hard on abortion. But he ain't budging.

 

[Brown]

Aside from a good analogy or two, I don't see what can be learned by this process.

There are several things that are very important.

First, the Senate and the public can assess Judge Roberts's demeanor. Demeanor is especially important for evaluating a potential chief justice.

Second, the Senate and the public can assess Judge Roberts's skills in organization and analysis. Many really good judges are skilled at identifying issues and thinking on their feet. Unscripted questioning is arguably the best way to evaluate these skills.

Third, the Senate and the public can assess Judge Roberts's views on the role of the Court. Most of the documents made public represent the point of view of an advocate, and are not representative of Judge Roberts's view of the judiciary's role.

Fourth, Judge Roberts makes certain statements that are arguably enforceable by law. Many of these are formalities, but it's nice to have them on the record. If Roberts starts acting overtly political on the bench, these statements under oath can be used to support impeachment. More practically, it is important for Roberts to make it clear, under oath, that he views his job as a judge to give everyone a fair shake.

Fifth, the Senate and the public can assess Judge Roberts's skills on "forward thinking." "Forward thinking" is a very important judicial quality. It has to do with understanding how and why precedents are set, understanding how and why judicial rulings are practical or impractical, and recognizing how precedents might have unintended consequences. As Roberts is almost certainly aware, Supreme Court justices often ask during oral argument questions like: "If we hold in favor of your client, won't that mean...?" It is important for Judge Roberts to assure the Senate and the people that he is a forward-thinking judge, and he can do so by answering tough questions that probe his jurisprudential views.

 

[Brown]

Re: Re: The Questioning of Judge Roberts

Is that because football referees have the option of not calling an infraction if they decide not to?

To some extent, yes. It is not unusual to describe a court's decision as "No harm, no foul," which is more suited for a basketball or football analogy than for baseball. So yes, the strength of the analogy depends on the sport. Occasionally, a hockey analogy is appropriate ("Sometimes a judge just has to let these guys fight a while before stepping in.")

Officials have to make calls, and they have to make them on the spot. The runner is safe or out. The catch is complete or incomplete. The player is in bounds or out of bounds. Sometimes application of the settled rule is unclear. But this does not excuse the official from making the call.

John Madden has commented on something like this, when he saw a football player catch a pass near the sideline, before going out of bounds. The rule that Madden was familiar with was that both of the receiver's feet had to be in bounds while he had possession, otherwise the pass was incomplete. Here, the player did not get both feet in bounds, but one of his knees touched the ground in bounds before the player went out of bounds. Had that player merely been touched by an opponent when his knee was down, the player would have been considered to be tackled.

The ref ruled that the catch was complete. One knee in bounds is just as good as having two feet in bounds, said the ref. One Knee Equals Two Feet. (Madden made that the title of his book.)

 

[Ed]

Originally posted by Brown
First, the Senate and the public can assess Judge Roberts's demeanor. Demeanor is especially important for evaluating a potential chief justice.

I see that but it like Nixon sweating, not particularly meaningful except insofar as this is a beauty show.

Second, the Senate and the public can assess Judge Roberts's skills in organization and analysis. Many really good judges are skilled at identifying issues and thinking on their feet. Unscripted questioning is arguably the best way to evaluate these skills.

If you say so though I wonder if these public charactaristics bear any relation to the quality of one as a legal thinker. Suppose the guy was a horror, difficulty expressing himself, ugly, not poised. Would this necessarily have anything to do with the quality of his mind. I heard some idiot commentator say that today Scalia would never have made it, "dark, furtive" I think were words that he used. That is sorta sad.

Fourth, Judge Roberts makes certain statements that are arguably enforceable by law. Many of these are formalities, but it's nice to have them on the record. If Roberts starts acting overtly political on the bench, these statements under oath can be used to support impeachment. More practically, it is important for Roberts to make it clear, under oath, that he views his job as a judge to give everyone a fair shake.

That explains why that republican idiot asked him to state for the record that he would keep an open mind on Roe. Verrrry interesting.

Fifth, the Senate and the public can assess Judge Roberts's skills on "forward thinking." "Forward thinking" is a very important judicial quality. It has to do with understanding how and why precedents are set, understanding how and why judicial rulings are practical or impractical, and recognizing how precedents might have unintended consequences. As Roberts is almost certainly aware, Supreme Court justices often ask during oral argument questions like: "If we hold in favor of your client, won't that mean...?" It is important for Judge Roberts to assure the Senate and the people that he is a forward-thinking judge, and he can do so by answering tough questions that probe his jurisprudential views.

I thought that the precident issue was silly. He said Brown was "closer" to the equal protection clause than Plessy therefore the precident was malformed or something. The point is that he is a lawyer and I would expect him to be able to argue any position he takes convincingly. He could take 35 years of Roe and say the same thing (incidentially, would overturning Roe be the worst thing? That might be worth a thread). He also, on the end of life issue, was questioned about countervailing views. He said something to the effect that there is always a right given up for garnting a right or something. They didn't ask the obvious question "if only the individual is concerned, does the state have a say?" Would have been a good question. [/QUOTE]

 

[Luke T.]

Senator Feingold (D-WI) just asked Roberts if he, as Chief Justice, would support televising arguments before the Court.