Don't Cry for Him, John G. Roberts, Jr.

To the surprise of some and the chagrin of others, I was a big booster of John G. Roberts, Jr.'s nomination to the U.S. Supreme Court. Not only is he patently brilliant, I believe that he also has the makeup to evolve over time on the Court and to become more moderate than his current record indicates-- just like Justices Sandra Day O'Connor, David Souter and Anthony Kennedy did or have done during their tenures on the bench. I even went so far during his confirmation hearing before the Senate Judiciary Committee 13 months ago to generally praise his comportment while complaining about the lack of substance in his responses to the Senators.

So imagine how disappointed I am today to learn that the Chief Justice is getting all whiny about his four-day long performance before the Committee last September. According to the Associated Press, Chief Justice Roberts told University of South Carolina law students Friday that the Senate shouldn't take as long as it does to confirm members of the Supreme Court. "I certainly think they're too long, four or five days," he reportedly told the students who had assembled to watch the Boy Wonder preside over a "moot court" competition at the school. (Incidental memo to file: a future Supreme Court Justice, Stephen Breyer, once presided over a moot court competition with which I was involved. We lost. But he was a real inspiration to us baby lawyers). "It does wear on you a little bit," the Chief Justice added.

Too bad. And shame on the Chief Justice for whining. Part of the problem, as I've written before, is the inability of Committee members to pay attention long enough to bore in on a particular topic and actually listen to what the nominee says when answering a question. All too often, the Senators speak to themselves, or to their constituents, as if there is no one else in the room, much less a Supreme Court-nominee who is more or less held captive until the process is over.

But the bigger part of the problem, the most direct reason why judicial confirmation hearings often take way longer than they ought to, is because the candidates themselves simple aren't willing to be candid in any way about their political and legal leanings. John Roberts' performance last September was stunning-- mostly because he mastered the art of saying absolutely nothing in 743 different ways. That's nobody's fault but his own. Had he been candid with the Committee, had he answered questions directly and without hiding behind the "I can't talk about this because one day I might have to decide it," Roberts' confirmation could have been only slightly longer than that of Kennedy-appointee Byron "Whizzer" White, who stayed before the Committee just long enough for a cup of coffee in 1962.

I had and have no problem with Court nominees playing by the rules of the game, perverse though they may be. I just don't like the thought of them whining about it a year after the fact, especially when they are in robes when they do so.

By Andrew Cohen |  October 20, 2006; 4:00 PM ET
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And what of bloggers who whine about whining?

Posted by: Andrew | October 20, 2006 05:36 PM

You think Roberts will be a 'moderate'? Hmmm. I don't think so. This man is conservative and I think what gets the liberals is that he's just so nice about it.

Posted by: Steve | October 23, 2006 06:36 AM

Nobody likes a sore winner.

Posted by: attorneyofrecord | October 24, 2006 05:06 PM

That's very silly of the Chief Justice to say that. You are basically coming before the committee asking for a LIFE term on the most important court in the land. Once you're confirmed, you can't be touched. So before you get a life appointment with no accountability, is it really that unfair for the Senate to have the right to thoroughly question you to make sure you're fit for the high court? The president has to campaign for 4 years to get their job, and senators and representatives have to campaign for almost 2 years prior to the election. And Supreme Court justices have to answer questions in a tame setting for...four days? Sounds pretty cruel and unusual.

Posted by: Q | November 2, 2006 11:50 PM

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