With respect to the third day of confirmation hearings for Judge John G. Roberts, one must ask the same question that many have posed with respect to the third year of law school: "Was it really necessary?" As Dana Milbank of the Washington Post accurately noted:
Midway through a second day of questioning of Roberts, the hearing had lost most of the little suspense it had in the first place. The only speculation in the halls outside the hearing today was how many, if any, Democrats on the committee would vote for Roberts en route to his all-but-certain confirmation.
"A veritable snooze-fest" is how Article III Groupie described day one of the hearings, during which senators read from prepared statements. But perhaps that description should have been saved for day three, based on this observation:
Jane Roberts, the nominee's wife, is so concerned about her husband's fate that she was seen dozing off on camera yesterday as her husband answered questions.
Zzzz!!! Can someone please slip her some Vivarin? (Of course, before anyone faults Jane Sullivan Roberts for napping during her husband's confirmation hearing, they should consider how draining it must be to look after these tykes.)
From A3G's perspective, the most interesting aspect of the latest session was the effort to probe "under the robe" of Judge Roberts. Several Democratic senators made embarrassingly transparent efforts to get Judge Roberts to address hot-button issues by soliciting his views not as a judge, but "as a person." A3G half expected one of them to take the Connie-Chung-with-Newt-Gingrich's-Mom approach: "Judge Roberts, your view on Roe v. Wade -- why don't you just whisper it, just between you and me..."
Senator Joe Biden (D-DE), for example, tried to get all "buddy buddy" with John Roberts, in an attempt to elicit greater openness from him. Senator Biden's "let's talk mano-a-mano" strategy might have been called sneaky, if it weren't so obvious and inept:
Do you think the state -- well, just talk to me as a father. [J]ust tell me, just philosophically, what do you think? Do you think that is -- not what the Constitution says, what do you feel?
Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment... should be one that the legislators in Dover, Delaware, should make, or my mother should make?
Because he's not an idiot, Judge Roberts did not take the bait: "I'm not going to consider issues like that in the context as a father or a husband or anything else." Translation: "Please, Senator Biden -- no peeking beneath the robe!"
Similarly, as noted here, Senatrix Dianne Feinstein (D-CA) tried to coax candor out of Judge Roberts by purring, "I'm trying to see your feelings [on euthanasia] as a man." The good senatrix even threw in a flattering reference to his youth: "I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice." But once again, Judge Roberts declined to drive down Oprah Avenue, sensibly refusing to offer his "feelings" on critical legal issues.
Fairly late in the hearings, Senator Chuck Schumer (D-NY) made this valiant effort to pierce the Robertsian armor, to locate the "ordinary guy" under all those robes:
SCHUMER: [T]his process is getting a little more absurd the further we move. You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers.
It's as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, I like movies with good acting. I like movies with good directing. I like movies with good cinematography. And I ask you, No, give me an example of a good movie. You don't name one. I say, Give me an example of a bad movie. You won't name one. Then I ask you if you like Casablanca, and you respond by saying, Lots of people like 'Casablanca.' (LAUGHTER) You tell me it's widely settled that Casablanca is one of the great movies.
SPECTER: Senator Schumer, now that your time is over, are you asking him a question?
SCHUMER: Yes. (LAUGHTER) I am saying, sir -- I am making a plea here. I hope we're going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.
SPECTER: We will now take a 15-minute break, reconvene at 4:25.
ROBERTS: Mr. Chairman, could I address some of the...
SPECTER: Oh, absolutely. Absolutely. I didn't hear any question, Judge Roberts...
ROBERTS: Well, there were several along the way... I'll be very succinct.
SPECTER: You are privileged to comment. This is coming out of his next round, if there is one. (LAUGHTER)
Perhaps to Senator Schumer's surprise, Judge Roberts didn't dodge the movie question. But Judge Roberts's willingness to answer shouldn't have been that surprising, since it's highly unlikely that his response could have compromised his judicial impartiality or integrity in any way (unless he mentioned, say, Debbie Does Dallas, then launched into a long and controversial discussion of the First Amendment and obscenity law).
(To any federal judges out there reading this blog: The willingness of your likely future Chief Justice to discuss his favorite films is an argument in favor of your being interviewed for UTR's celebrity interview series, Questions Presented. Because A3G's questions are all non-substantive softballs, there is no danger of you violating any canons of judicial ethics. So please, email A3G and volunteer!)
Presumably bored by all the dry legal discussion, even the Republican senators tried to get a little more personal with Judge Roberts. Senator Sam Brownback (R-KS), for example, pitched Judge Roberts a fat pitch over home plate, by inviting him to reminisce about his late mentor, Chief Justice William Rehnquist. (Oops, sorry for that misguided baseball analogy. Judge Roberts isn't a batter; he's an umpire!)
Senator Brownback was followed by Senator Tom Coburn (R-OK), who also got surprisingly personal, by weirdly complimenting judicial hottie Roberts on his body (language):
As you have been before our committee, I've tried to use my medical skills of observation of body language to ascertain your uncomfortableness and ill at ease with questions and responses.... And I will tell you that I am very pleased, in my observational capabilities as a physician, to know that your answers have been honest and forthright, as I watch the rest of your body respond to the stress that you're under.
Um, okay... Well, at least Senator Coburn's comments were oddly amusing, as was this question from him: "Is relying on foreign precedent, and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior [under Article III]?"*
All in all, despite a few entertaining exchanges, day three of the Roberts hearings was pretty boring, at least in substantive terms. But in sartorial terms, it was a little more lively than the past two sessions. Perhaps emboldened by how well the first two days went, Judge Roberts eschewed his usual red necktie and busted out a pale blue tie with black-and-white stripes. (Photo at right by Pablo Martinez Monsivais/AP; click on the thumbnail for a larger image.)
Very nice, Judge Roberts! Sure, the pastel blue is a little daring. But it's not over-the-top or "out of the mainstream," as the Senate Democrats might say. A3G approves!
If you think it's frivolous of A3G to be discussing cravats while the fate of the Republic hangs in the balance, well, think again. The senators themselves spent significant time dwelling on neckties:
Senator Brownback, during his question time, digressed to discuss an elevator operator in the Capitol who has Downs Syndrome. "He frequently gives me a hug in the elevator," Brownback said. "I know he hugs Senator Hatch often, too, who kindly gives him ties -- some of which I question the taste of, Orrin." Hatch interjected: "It doesn't have to get personal."
When Republican senators start squandering precious questioning time on banter about hugs from elevator operators, you know they're not too worried about the outcome of the proceedings. (Of course, in making this observation, A3G assumes that the hugs in question do not possess the historical significance of The Hug...)
Here's an idea from A3G for the remaining sessions. Considering the waste of time that these hearings have become, with Judge Roberts's confirmation as Chief Justice essentially a foregone conclusion, how about devoting a few minutes to this line of questioning:
Judge Roberts, you stated earlier in these hearings that the people don't vote for judges. But that is demonstrably untrue. Hundreds of people voted for you and your competitors in the Superhotties of the Federal Judiciary contest run by the judicial gossip blog Underneath Their Robes.
Here is my question, Judge: How does it feel to be the fifth-hottest federal judge in the United States?
So, to any Senate Judiciary Committee staffers reading this blog: Why not try slipping an index card with this question into your boss's briefing materials? Lord knows the hearings could use a little more comic relief. And wouldn't it be great to hear Judge Roberts's response to this query?
* Don't get A3G wrong; she shares the brilliant Justice Scalia's opposition to reliance upon foreign law. She just thinks it's a bit silly to take any judicial decision or analytical approach with which you disagree and to label it a violation of the "good behavior" requirement. It reminds her of how some of the judical ethics complaints filed against Judge Guido Calabresi (2d Cir.), based on controversial remarks he made comparing President Bush to Mussolini and Hitler, amusingly alleged that he "demonstrated incompetence by disagreeing with the U.S. Supreme Court's decision in Bush v. Gore."