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More Fun Than the EmmysWinners of the Roberts-Takes-the-Fifth Reader Contest.

By Dahlia Lithwick
Posted Tuesday, Sept. 20, 2005, at 4:57 PM ET

Last week, Slate readers placed bets on how many times John Roberts, President George Bush's nominee for the chief justice of the United States, would refuse to answer a question on the grounds that it might create an appearance that he had prejudged a matter that might come before the Supreme Court.

Roberts refused to answer several types of questions. He would not offer his opinion on prior cases or on hypothetical cases if he felt a similar case might come before the court. He wouldn't opine on whether past cases were correctly decided, except for the times that he would, and he would occasionally say whether they represented "settled law." He also wouldn't answer questions he considered too abstract. As one reader pointed out, it's hardly fair to condemn the nominee for failing to answer the same question if it's asked 100 times. My own guess is that it's more like he refused to answer about 20 questions, each of which was asked five times.

All this does raise a problem of methodology. Most of the liberal interest groups widely quoted the figure "over 100 times" to describe Roberts' performance after just two days. In fact I repeated that statistic myself last week (and thus misled some voters into the land of quadruple digits, I fear). But my own calculation now suggests this was an overstatement. I think, for instance, that it's unfair to count a colloquy in which a senator asks a question, Roberts refuses to answer, and the senator then asks the same question twice—including three nested questions about why he refuses to answer—as six refusals. So, in cases in which Roberts and a questioner engaged in a long back-and-forth about why he wouldn't answer a specific question, I counted it as a single nonanswer. I also counted "Senator, I have no quarrel with case X," as a substantive answer, although I may yet live to regret that one.

Thus, based on my own meticulous rereading of the transcript, the results of the contest are as follows: John Roberts refused to answer 67 questions. Still well over the Ginsburg Line.

And the winner is—we have two! Shane Yost and Dr. David Head. Congratulations and stand by for fabulous Slate stuff.

Honorable mentions (but swagless ones) to: Matthew Thorburn, Douglas E. Bell, Linda Whitener, and Toby Dillon—who were awfully close. And while almost all of your letters were hilarious, special honorable mention also goes to Leslie Molldrem who offered a side bet on the 800 times Roberts would say "I appreciate" (she is close), and Jeffrey Marchal who bet on 12 uses of baseball metaphors.

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Dahlia Lithwick is a Slate senior editor.
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