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Senator Graham’s comments about the increasing politicization of judicial nominations were well put. But I did find one thing odd. In observing that it must be odd for Judge Roberts to sit at home with his family and see TV advertisements accusing him of heinous things, Graham made the off-hand remark that this must have been tough for Democratic nominees as well. Hmmm. That’s odd. I’m sure it’s possible that there were anti-Ginsburg ads or anti-Breyer ads — and I suppose it’s remotely conceivable that they were as vicious as some of the anti-Roberts ads — but I cannot remember a single one. It’s one thing to acknowledge Senate Republicans unfairly bottled up some Clinton nominees (which they did), it’s another thing to pretend that Democratic nominees have faced anything close to the sort of political attacks leveled at Roberts and other Republican nominees.

“Elections Matter”


This remark by Senator Lindsey Graham was perhaps the most important thing said by any of the Senators in their opening remarks at the Roberts hearing yesterday. It’s often said that the Supreme Court follows the election returns. In one important respect this is very true: Those who win presidential elections appoint justices to the Supreme Court. SCOTUSBLog’s Lyle Dennistonwas struck by Graham’s comment as well.


Re: Justice Owen?


In the column Jonathan cites, the usually level-headed Bob Novak has done it again, but even worse this time: In touting Priscilla Owen as the next justice, Novak asserts that her appointment would “guarantee a conservative court for 20 years.” But on the assumption that Owen would be a stellar justice, her appointment would not establish a conservative court for one day. As I explained in response to Novak’s similar (but more modest) assertion of a month ago, Justice Kennedy would still be the needed swing vote, and he cannot fairly be labeled conservative. Does Novak think otherwise?

Schumer’s Statement


As Schumer told Roberts what he should do “if you want my vote,” I could only wonder how Roberts could possibly care. Schumer voted against Roberts in committee on his D.C. Circuit nomination, and Roberts was confirmed. Schumer’s vote is equally immaterial here.

Robert’s Opening


Delivered without notes:

Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.

Let me begin by thank Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. I’m humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me. Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you’ve extended to me and my family over the past eight weeks. I’m particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent. I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues — many of whom are here today.

Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient. He chafed at the limitations they tried to impose. His dedication to duty over the past year was an inspiration to me and, I know, to many others. I will miss him.

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice, in the Office of the Solicitor General, it was my job to argue cases for the United States before the Supreme court. I always found it very moving to stand before the justices and say, I speak for my country. But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.

President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment.

If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land. Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.


NOW’s Schedule


Tuesday, September 13 ? Friday, September 16 Daily Events
(Meet behind Senate Hart Office Building on C Street, between 1st and 2nd Streets, NE)

Tuesday: “Save Title IX”
Come in your sports gear, college T-shirts or sweatshirts, and bring lots of signs!

Wednesday: “Demand Pay Equity” Visibility
Bring cookies, brownies, etc. for our mock bake sale! We’ll have a booth with signs “selling” goodies- $1 for men and 76 cents for women! And as always, bring signs!

Thursday: “Save Reproductive Rights” Visibility
Come barefoot and pregnant (if you’re not pregnant, a pillow works!), bring caution tape, hangers, and lots of signs!

Friday: “Civil Rights” Visibility

The “D”emocratic moment


Senator Biden opined about the importance of the Senate hearings, saying that “[t]he Constitution provides for one democratic moment before a lifetime of judicial independence . . . .” It’s time to read your Constitution, Senator. The most important democratic moment is not the Senate hearings, but is achieved by the people voting into office the President who in fact chooses the nominee. In my memory, this has never been truer than in this last election, when judicial nominations were a prominent campaign issue and served as a deciding factor for many voters when they went to the ballot box. That is, the electorate was peculiarly aware of the importance of this election for judicial nominations. Senator Biden’s statement is a blatant attempt to undermine that important democratic moment in the service of his “D”emocratic objectives.

Cornyn vs. Schumer


Senator Cornyn’s office released this a few minutes ago:

Sen. Schumer is once again attempting to create a false impression about what actually occurred at Justice Ginsburg’s confirmation hearings. Unfortunately, he omitted significant portions of questioning and neglects to include Justice Ginsburg’s own explanations of her answers.

In fact, Justice Ginsburg declined to answer Senators’ questions 55 times, on issues including:

Gender discrimination

Voting Rights Act and other race discrimination issues

Gay rights

Rights of the disabled

Religion and the separation of church and state

Restrictions on abortion and taxpayer funding for abortion

Death penalty

Foreign relations and criminal justice

Even in the issue areas that Sen. Schumer previously emphasized, such as abortion, Justice Ginsburg answered only those questions to which the Senate already knew the answers.

Justice Ginsburg was not alone. President Clinton’s second Supreme Court appointee, Justice Stephen Breyer, likewise declined to answer Senators’ questions 18 times, on issues including:

Gender discrimination

Race discrimination laws


Death penalty

Criminal defendants’ rights

Separation of church and state

Government regulations of industry

Garnett on Today So Far


From my in-box: “The Republicans need to defend a vision of the Constitution and not merely lay down procedural rules for the confirmation process. In today’s opening remarks, the Democrats again and again proposed a vision of the Constitution in which unelected judges take it upon themselves to push society in a policy direction favored by liberal Senate Democrats. The Republicans must articulate a competing vision in which questions of policy and morality are decided by the people through their elected representatives and not by unelected judges. The Senate Democrats complained repeatedly about Supreme Court rulings overturning Congressional decisions and yet they were silent on the all too common practice of Justices substituting their policy preferences for those of state legislators and of the people. In United States vs. Lopez, Chief Justice Rehnquist echoed Chief Justice Marshall that the federalist structure of our government serves to protect the liberties of individuals. The Senate Democrats need to be reminded of this basic civics lesson.” – Rick Garnett, professor of law at the University of Notre Dame and former clerk for Chief Justice Rehnquist.

“Something to Hide”?


Senator Kennedy’s already repeated the silly charge that there must be something to hide if the administration still refuses to release documents from the Solicitor General’s office. Before accepting this charge, people should read this article from the Legal Times on what SG veterans think. Liberal and conservative alike suggest there is nothing much to learn in those documents about Roberts, but that it could chill the candor of SG staff attorneys in the future. Said one former SG attorney, “The memos would reveal that he was pushing the positions of President Bush I. That news would make me want to yawn and take a nap.” The bottom line is that no living SG has called for the release of any documents from the SG’s office. Former Clinton acting SG Walter Dellinger has hinted it might be justified in certain circumstances, but even he has yet to call for their release here.

Justice Owen?


Robert Novak reports that President Bush met with Priscilla Owen last week. While she’s only been on the federal appellate bench for a few months, she already has more federal appellate experience than Justice Souter did when he was nominated to the High Court. Priscilla Owen should not have been a controversial nominee to the Fifth Circuit, but she was filibustered by Senate Democrats. Many believe it was because (like Estrada and Brown) she was seen as potential Supreme Court material. If Bush taps her, it will confirm those fears–and prompt a real confirmation fight.

Memo to Senator Schumer


It’s not all about you. From the NYTimes:

One Democrat, Senator Charles E. Schumer of New York, was so concerned with his performance that he held a mock hearing in his office on Sunday, with a Harvard law professor playing Judge Roberts. As chairman of the committee charged with electing Democrats to the Senate in 2006, Mr. Schumer has used the confirmation battle to raise money for campaigns and to solidify his standing as a party leader.

Arlen Specter


doesn’t know what he’s talking about.

But you already knew that.

Again on the Scope of Questioning


Today Sen. John Cornyn at NRO, and former solicitor general Theodore Olson in the pages of the Wall Street Journal, offer arguments on the range of permissible questions for Judge Roberts that culminate–whether Cornyn and Olson realize it or not–in the conclusion that we ought not to have hearings on Supreme Court nominees at all. Or at least no hearings at which the nominees themselves appear to answer questions. Olson puts the case succinctly:

The most appropriate response to these questions [about how he views past rulings that might be revisited] is for the nominee to promise an open mind in every case, receptivity to the arguments of counsel, the views of colleagues and due respect for the written text, history, precedent, context and factual setting of a particular matter. And he should promise to render future decisions free from preconceived or pre-expressed opinions as to how a case should be decided. We expect no less from a judge; and that is the only response we should expect to hear during confirmation proceedings. Anything else bargains away future judicial independence.

I have previously given longer responses to such arguments, so for now I’ll offer my short one: horsefeathers. If this were all we had a right to expect from nominees to the Supreme Court, we could dispense with having them appear before senators at all, since every nominee will promise all of the above as a matter of course. I’d like us all to live in a world in which the judicial power were once again its original size, and we could confine ourselves to the narrow questions of a nominee’s technical qualifications, experience, and character. When we lived in that world we had no need for such extended hearings with personal appearances by the nominees. We don’t live in that world today. As for “judicial independence,” it’s something we’ve seen far too much of for about a century now. And I cannot fathom the shortsightedness of the GOP party line–which I think is represented by the Cornyn and Olson articles–in disarming the Republicans from tackling, hard, the next liberal judicial activist to be nominated to the Court by a Democratic president.

The New York Times invited five people to frame five questions each for Judge Roberts, and they appear on the Times’s op-ed page today. I like most of them, but Glenn Harlan Reynolds and Ron Klain (yes, Ron Klain) ask the best ones. They make for better reading, I’m afraid, than do Messrs. Cornyn and Olson.

Think Again


Ron Brownstein suggest the president nominate a Democrat for the next slot.

The Schedule, According to Chairman Specter’s Office


Tentative Schedule for the Hearing:

*Schedule is subject to change*

Monday, Sept. 12

Noon Chairman Specter opens hearing, including various housekeeping matters

12:15 pm Chairman Specter begins 10 minute opening statements for Committee members

3:15 pm Break

3:45 pm Senators Warner, Lugar, and Bayh introduce John Roberts

4:00 pm Swearing-in and 15 minute testimony of John Roberts

Tuesday, Sept. 13

9:30 am Chairman Specter begins 30 minute round of questioning (Round 1)

1:00 pm Break for lunch

2:00 pm Resume questioning

6:00 pm Break for dinner

7:00 pm Resume questioning

8:30 pm Round 1 questioning ends

Wednesday, Sept. 14

9:30 am Chairman Specter begins 20 minute rounds of questioning (Round 2)

1:00 pm Break for lunch

2:00 pm Resume questioning as necessary

*At the conclusion of questioning, the Committee is expected to go into closed session.

Thursday, Sept. 15

9:30 am Outside witness testimony with first 3 panels

1:00 pm Break for lunch

2:00 pm Resume testimony with last 3 panels

5:30 pm Conclusion of the hearing

It’s Probably Bad That I’m Tired of This Already


From the Boston Globe:

America cannot tolerate a justice who drags the country backward, hacking away at rights to privacy or Congress’s ability to protect health, workers, and civil rights.

The paper trail so far on Roberts is discouraging.

What to Expect


My NRO essay today offers my thoughts on how the hearing will unfold.



Here’s Specter’s opening statement for this morning.

Speaking of Katrina



“The tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own,” Sen. Edward M. Kennedy said in a statement prepared for the opening of hearings.

The Massachusetts Democrat called Roberts an “intelligent, well- educated and serious man” but said the Senate “must also determine whether he has demonstrated a commitment to the constitutional principles that have been so vital in advancing fairness, decency and equal opportunity in our society.”


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