Oh, the Humanity!

Confirmation Report

Oh, the Humanity!

Confirmation Report

Oh, the Humanity!
The law, lawyers, and the court.
Sept. 14 2005 8:41 PM

Confirmation Report

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Senate Democrats have had it up to here with "John Roberts the lawyer." And it's hard to blame them. John Roberts the lawyer won't answer any questions. At least, as the sole arbiter of what questions he'll answer, he's doing a rather phenomenal job of broadly defining great classes of questions as unanswerable:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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  • He won't answer questions about any case currently pending before the Supreme Court (abortion, right-to-die);
  • He won't answer questions about any case that might someday conceivably be pending before the Supreme Court (separation of powers, contested presidential elections);
  • He won't answer questions he's decided on the court of appeals (since they may someday conceivably be pending before the Supreme Court);
  • He won't answer questions about prior nominees (Robert Bork) because that is not appropriate;
  • He can't answer questions about general legal doctrine because they are too general;
  • He can't answer questions about specific legal doctrine because they are too specific;
  • He can't answer questions about his early memos because a robot wrote them.

One question Roberts does feel comfortable answering today, in response to a lengthy ramble by Sen. Tom Coburn, R-Okla.: "Would you agree that the opposite of being dead is being alive?"

Since this will probably never come before the court, Roberts is comfortable answering, "Yes."

Because they are making absolutely no headway with John Roberts the Lawyer, senators start to chip away at his steely reserve through various clumsy requests that he reveal "John Roberts the Man." It starts with a weird little Shakespearean caution by Mike DeWine, R-Ohio: "President Bush nominated John Roberts, the man. … Please don't check any of that at the door. … When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide open fields of your youth. … I must say, sir, they must never leave you." Oh, and neither a borrower nor a lender be.

Just say it 
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Just say it
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Then the increasingly crazed Joe Biden, D-Del., gets involved: "Does the right to privacy include the right to make the difficult decision when to no longer continue using an artificial apparatus to keep your parents alive?" Roberts cannot answer since that is "an area pending before the court."

"Just talk to me as a father," pleads Biden. Roberts says he will not consider this in the context of a father or husband. Dianne Feinstein, D-Calif., emotes even harder. She can't understand why he was so candid yesterday morning and then totally shut down after lunch. "Did anyone caution you?" she asks worriedly. Or did he spill iced tea on himself at lunch and short-circuit his memory bank? "I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man," Feinstein says. Then she tries to get him to answer Biden's right-to-die question but pretend it's him dying as opposed to his wife or children. When he begins to offer a legal answer, she urges, "I am trying to get your feelings as a man."

It's like a bad method-acting class. Pretend your puppy's dead, judge. We'll be needing some tears here. Feinstein sticks to the dead-people theme as she names all the children who died due to guns after the court struck down the Gun-Free School Zones Act in Lopez. Silly Rabbit. Doesn't she know Vulcans only get feelings once every seven years? And then only long enough to mate?

And don't even get me started on Sen. Brownback's, R-Kan., pro-life paean to Jimmy, the elevator operator with Down syndrome who "kindly gives Orrin Hatch ties."

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But the kicker comes toward the end of the afternoon, when Chuck Schumer, D-N.Y., apparently in some psychotic break with reality, excoriates both the Judge and the Man for refusing to give substantive 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.' You tell me it's widely settled that Casablanca is one of the great movies."

Roberts is finally getting riled. But not enough to emote. He asks the chair for a little bit of extra time to defend his decision not to turn the hearings into a "bargaining process" in which he promises votes in future cases. Which means he's just waiting for Joe Biden to come at him in Round 3 with the question Peter Lorre asked Humphrey Bogart: "You despise me, don't you?"

To which Roberts, like Bogart, can reply: "Well, if I gave you any thought, I probably would."

*******
Sad news for contest entrants: My expert observers tell me that Roberts is fast approaching 100 nonanswers as of this writing. Luckily, you can vote twice! Send your guesses to
livingcons@hotmail.com. Your Slate swag just doubled in value when Russ Feingold, D-Wis., urged his colleagues to read our conflict-of-interest piece. (By entering this betting pool you allow Slate to publish your name.)