And so, the Senate Judiciary Committee vote today comes down to this complex legal inquiry: Who would the Democrats rather have, Chief Justice Tin Man or Chief Justice Scarecrow? They are being forced to determine whether they'd rather have a nominee with no heart or no brain.
Political scholars will parse, better than I can, the calculus and machinations underlying the "no" votes from Sens. Dianne Feinstein, D-Calif., Ted Kennedy, D-Mass., Joe Biden, D-Del., Chuck Schumer, D-N.Y., and Dick Durbin, D-Ill.; and the yeses from Pat Leahy, D-Vt., * Herb Kohl, D-Wis., and Russ Feingold, D-Wis. It's all some noxious stew of placating constituents, pandering to interest groups, and rationing out some apparently finite amount of political outrage between this nominee and the next. But it's a mistake to say Democrats are less principled than the Republicans when John Roberts has proven to be Christmas in September for the GOP. As Sen. Lindsey Graham, R-S.C., points out this morning: "This is the easiest vote Republicans will ever make."
Not so for the Democrats who take pains to point out how difficult this decision has been. Those who vote "yes" frequently offer up detailed indictments of Roberts' awfulness before conceding they will support him. The "no" votes largely invoke last week's rhetoric of Roberts as the Tin Man.
Dianne Feinstein notes that in his Senate testimony, Roberts refused to retract or disavow a single smartass comment that he made about women and minorities in his younger days as a hothead in the Reagan administration. Feinstein is also first to point out that Roberts' ubiquitous line "I have no quarrel" with one case or another, does not necessarily mean he'd vote to uphold it: "I was struck as I reread the transcript by his use of this line, I have no quarrel with," she says, "And then I went back and read Judge Thomas' transcript. And he used that phrase eight times on eight different topics. ... So, I came to believe that I have no quarrel with is a kind of term of art of equivocation." But Roberts' worst offense, in Feinstein's eyes, is his refusal to emote: "When I couldn't get a sense of his judicial philosophy, I attempted to get a sense of his temperament and values. And I asked him about the end-of-life decisions: clearly, decisions that are gut-wrenching, difficult and extremely personal. Rather than talking to me as a son, a husband, a father—which I specifically requested he do—he gave a very detached response."
Ted Kennedy invokes the famous Oliver Wendell Holmes quote: "The life of the law has not been logic, it has been experience. … Legal decisions are not like mathematics." He goes on to observe that if they were, you could confirm computers instead of judges.
Joe Biden notes parenthetically that he is "moving to the view that I'm not sure these hearings are the proper way to determine how to vote for a judge." Then he says he's voting against Roberts because he was fooled by Antonin Scalia, and he won't be fooled again: "I … gave him the benefit of the doubt and voted for him. ... And I acknowledged after that vote it's the last time I would do that. His rulings on the court to restrict or repeal fundamental rights, however, convinced me that all future nominees would have to answer those questions about their judicial philosophy concerning these rights before I voted."
Chuck Schumer lays his betting book on the table: "If he is a Rehnquist, that would not be a cause for exultation in my book, but it would not be a cause for alarm. The court's balance will not be altered. But there is a reasonable danger that he will be like Justice Thomas, the most radical justice on the Supreme Court. It is not that I am certain that he will be a Thomas, it's not even that it's more than 50 percent, but the risk that he might be a Thomas and the lack of any reassurance that he won't, particularly in light of this president's professed desire to nominate people in that mold, is just not good enough. I hope he will not be a Justice Thomas but the risk is too great to bear."
And Dick Durbin goes with the Bible: "The greatest compliment one can pay a judge is not that he is smart, it's not that he has a great intelligence. The greatest compliment one can pay a judge is that he is wise. … In the Scriptures, Solomon was often described as the wisest man who ever lived. But in Chapter 3 of the First Book of Kings, we learn what Solomon wanted more than wisdom. It is written, 'In Gideon, the Lord appeared to Solomon in a dream at night, and God said, "Ask what you wish me to give you." Then Solomon said, "So give your servant an understanding heart to judge your people, to discern between good and evil. For who is able to judge this great people of yours?" ' … If you'll look at the questions more carefully and more closely, you'll find that we were asking more fundamental questions of John Roberts. We were trying to determine whether or not he has wisdom, whether or not he has an understanding heart."
None of the yes voters spares us his assessment of Roberts' heart, either. Pat Leahy says he is voting his conscience: "Judge Roberts is a man of integrity. I take him at his word that he does not have an ideological agenda." Kohl says, "I will vote my hopes today and not my fears." Feingold points to a "defining moment" at which Roberts' "gut-level" understanding shone through all his evasion: "For me and my colleagues, Judge Roberts' discussion of the Foreign Intelligence Surveillance Court, which has been such an issue in the Patriot Act debate, was a defining moment in the hearing. His answers showed a gut-level understanding of the potential dangers of a court that operates entirely in secret, with no adversary process."
So, maybe Biden is right. Maybe we should do away with this whole Senate confirmation process and just appoint a cardiac surgeon to issue a ruling on the state of the nominee's heart. (Bill Frist would probably do it at a discount.) There is, it seems, nothing else to talk about.
Don't get me wrong: All this talk of Roberts' heart and soul and conscience are the only way to get at the real problem—that John Roberts is more in love with legal processes than justice. This is surely worrisome to the Democrats on the committee. But George Bush long ago proved the fundamental silliness of purporting to be able to look into another man's heart. In a process in which past cases and future cases are not open to discussion; in which hypothetical and concrete fact patterns are not open to discussion; in which the political and the personal are off the table; and in which any intellectual or theoretical framework cannot be offered, we are all just left to viscerally guess at whether the nominee is a good guy. The vote today goes 13 to 5 that he is.
Based on the testimony of everyone who actually knows him, I'll hazard a guess that Roberts really is a good guy. But I'd still rather have him as my baby's godfather than as chief justice. It's just a feeling I have ...
Lest you think I'm being too easy on Senate Republicans, I hasten to add that Lindsey Graham's (and today, John Cornyn's) disgraceful use of these hearings to attack Ruth Bader Ginsburg as a champion of legalized prostitution, polygamy, and pederasty is beyond vile. Especially as it comes cloaked in calls for the Democrats to abandon partisanship in the confirmation process. Schumer is quite right to point out this morning that conservatives, not liberals, have made attacks on judges the cornerstone of their political project. Now even as they call for bipartisanship, they can't seem to resist attacking a judge with distorted versions of her 30 year old writings. Nice.
Wags everywhere are speculating whether Chief Justice Roberts will keep wearing the eight gold bars his predecessor sewed onto his sleeves several years back. He should; it may distract from the fact that he definitely won't be wearing his heart there.