The Senate Judiciary Committee has complaints about judges. For one thing, Republicans on the committee appear to think that "activist judges" are more dangerous to America than terrorism, hurricanes, and chemical weapons. Jeff Sessions, R-Ala., vigorously condemns the "post-modern philosophy" of judicial activism, excoriating the "activist Supreme Court judges" who interpret the Constitution in light of "evolving standards of decency." (He offers no better constitutional test for interpreting the Eighth Amendment because, um, there isn’t one). Charles Grassley, R-Iowa, hurls contempt upon the "Internet Age," including those of us with the ability to download "thousands of documents" and read them—according to him—in "an inaccurate way." Damn readers. And John Cornyn, R-Texas, expresses serious doubt about the judgments of "nine judges isolated behind a monumental marble edifice, far removed from the life experienced daily by average Americans." So, just to recap, the Senate thinks judges are capricious, activist, postmodernists who are dangerously out of touch with the average American.
Thank goodness we have a Senate, then, to speak clearly, think lucidly, and act with selfless devotion to sort out the real-world issues that matter most to you and to me.
The whole scene today, on the first day of John Roberts' confirmation hearing for the chief justice's seat, is a shock, particularly after five years of covering the dank, cavernous underworld that is the Supreme Court. Starting with the blinding light—the stark white walls of the Caucus Room at the Russell Building; the bright lights of C-SPAN; the fluttering Venetian-blinds sound of a hundred photographers taking the same picture. Reporters everywhere—on their computers, on their cell phones, on their BlackBerrys: a far cry from the court security guards who'll body-slam a reporter carrying anything higher-tech than a No. 2 pencil. It occurs to me right off the bat that this show is being carried live across the country. I'll have to stop making things up. Crap.
You would never know, if you sat through today's proceedings, that there's a war on. You would never know, if you were here, that the country is barely beginning to heal from the national wound that is Katrina. If you were a visiting alien, covering the Roberts confirmation, you could not be faulted for believing that the single biggest burning constitutional issue facing the federal judiciary is whether Ruth Bader Ginsburg answered substantive questions at her own hearings. More airtime goes to Ginsburg—she who "refused to answer nearly 60 questions," according to Orrin Hatch, R-Utah—than to the extraordinary grant of executive-branch wartime powers in the 2005 opinion Roberts joined in Hamdan v. Rumsfeld. In fact, I count exactly one senator (Dick Durbin, D-Ill.) who devotes more than a single sentence to the issue.
That's because today's hearings are not about the candidate. They are about the majesty and superiority of the Senate. Sen. Ted Kennedy, D-Mass., describes these proceedings as a "job interview with the American people." But in what solar system would a four-day job interview include a solid day in which the interviewer talks about himself?
The level of self-congratulation here today leaves the room airless: Sen. Arlen Specter, R-Penn., can't stop telling us how remarkably good his committee is about keeping to time limits. Sen. Lindsey Graham, R-S.C., congratulates himself on the compromise agreement between the so-called Gang of 14—that "kept the Senate from blowing itself up." He shakes his head. "It was chaos. … We were at each other's throats. … We're doing better." Oh, huzzah. And Chuck Schumer, D-N.Y., credits himself thusly: "I began to argue that a nominee's judicial ideology was crucial four years ago. Then, I was almost alone. Today, there is a growing and gathering consensus on the left and on the right that these questions are legitimate, important, and often crucial."
For those of you keeping score at home, I offer the following index of what worries the 18 senators of the Judiciary Committee most about Roberts, the judiciary, and the constitutional process:
Senators acknowledging that Roberts is really, really smart: 18
Republicans ranting about judicial activists: 7
Republican senators exhorting Roberts not to answer any questions more complicated than Roberts' choice of hair-care products: 6
Senators referring to Ruth Bader Ginsburg and whether she did or did not answer questions: I stopped counting at 6
Senators referring to God and/or angels: 5 (Three of them Democrats)
Senators offering grim estimates of John Roberts' extraordinary life expectancy: 4 (ranging from 25 to 40 years)
Senators fretting about the constitutionality of microscopic tags that can be implanted in a person's body to track his every movement: 1 (Joe Biden, D-Del.)
Senators referring to court decisions that limit congressional powers: 4
Senators referring to pregnancy, abortion, or choice: 5
Senators referring to the failure of federalism and Katrina: 2 (Patrick Leahy, D-Vt., and Ted Kennedy, D-Mass.)
Senators who cry: 1 (Tom Coburn, R-Okla.)
Senators referring to Roberts' expansive views of executive authority during wartime: 1 (Dick Durbin, D-Ill.)
Arlen Specter opened the proceedings with the grim warning that the committee faced "perhaps the biggest challenge of the decade." Really? Stuart Taylor wrote this week that questions regarding the detention of enemy combatants, the applicability of the Geneva Conventions to the war on terror, and the scope of the president's power in wartime will be some of the most important questions faced by the Supreme Court in the coming years. Apparently not. We first need to get to the bottom of whether the judicial canons of ethics prohibit the nominee from opining on past cases.
One of the reasons Americans are not very exercised about the Roberts hearings is that they are genuinely worried about bigger things, like whether the federal government is equipped to help them through the next disaster and whether the Bush administration dragged the country into war on a pretext. But today it seems the senators are the ones hopping around isolated behind that marble edifice. You'd think this country were actually at war with a bunch of renegade activist judges who perform abortions on the side, while citing Ruth Bader Ginsburg and pleading the Fifth.
The Senate accuses the high court of being checked out. But the high court grapples with hard questions about the reach of Congress' power and the rights of enemy soldiers, while these senators rattle off canned speeches about overreaching judges. If this is the Senate tackling the tough questions, I'll stick with the court parsing the Commerce Clause any day …
If you can't beat 'em, bet 'em. We herein present Slate's confirmation betting pool. Write in to firstname.lastname@example.org with your numeric prediction for how many times John Roberts will say he can't answer a question because it would create an appearance that he had prejudged the matter before him. Winner gets a piece of Slate paraphernalia (to be determined as soon as I clean out the bottom of my office closet).
(Legal Bit: By entering this betting pool you allow Slate to publish your name.)
Dahlia Lithwick writes about the courts and the law for Slate.