The Hearings: Party-Line Differences Without Partisan Rancor

Former Solicitor General Ted Olson writes in the Wall Street Journal that judicial confirmation hearings "now tend to combine the worst features of reality TV, professional wrestling and celebrity criminal trials." That's world-class sound bite material, but it seems a bit overblown, does it not?

After watching the opening statements, I've yet to see a chair thrown. Did Sen. Schumer bodyslam John Roberts while I was away from my desk? As far as I know, nary a curse word has been bleeped. Or have I missed something?

Olson laments that "prospective judges are probed, humiliated, scolded and scorned." The last three may happen when there are serious questions about a nominee's fitness for the position, and as for probing, isn't that only reasonable, when deciding whether to grant an individual a lifetime appointment?

Yes, it is true that the Democrats are hoping to get more specific answers out of Roberts. They want to know just hw much his views have changed -- or have not changed -- since his writings for the White House in the 1980s. As Post reporter Dana Milbank notes in today's Washington Sketch, Democrats brought up the hurricane as both a reminder of why federal government authority is so vital in times of crisis, and to point out the importance of looking out for society's poorest people. Since there's no talk of a filibuster and Roberts is assured most if not all of the GOP's 55 Senate votes, it will be interesting to see just how far Roberts is willing to go to accomodate the Democrats' questions. If he can assuage their fears that ideology will sway his decisions, he could come out of the confirmation process with a decisive majority; if not, the vote is likely to stick more closely to party lines.

"Why," Olson wonders, "must the process by which their appointments are confirmed be so raw and blatantly partisan?" Sorry, Ted, I still don't see it. Maybe the next one will be like that, but so far the Democratic senators have been very measured -- they talk about questioning Roberts, not defeating him; trying to ascertain his judicial philosophy, not trying to convince him that he's a bad, bad man for being against abortion. It seems a lot of commentators on the right are making these assertions that the left is being maniacally partisan over this nomination, but there just doesn't seem to be any evidence of that. Not yet, at least.

But constitutional scholar Mark Tushnet argues that no Democratic senator should vote to confirm Roberts. The crux of his argument is this: "If the principle of equality between the President and the Senate is correct, it should be enough to support a "No" vote that a Senator finds the nominee's vision of the Constitution to be disqualifying, just as the President found that vision to be a qualification."

On the whole, this makes sense. If Roberts believes, for example, that the Constitution supports vast executive power but very limited legislative power, that's a view that many senators, understandably, would not hold. (Legal Affairs magazine is also hosting what promises to be an interesting online debate over whether there is a really solid reason for liberals to oppose Roberts.)

Tushnet (who is also known for arguing that it should not be the job of courts to determine the constitutionality of laws -- yes, that really is his view) minimizes the role that politics plays in this process. He wonders why so many Democratic senators seem to believe that "each one has a limited number of 'No' votes he or she can cast. Put more formally, the idea appears to be that each 'No' vote is an expenditure of some political capital, and depletes the stock." He thinks a 'No' vote can actually build political capital -- and amongst the most adamant pro-choice groups, that's probably true. But among Americans who don't find anything overly objectionable about Roberts, a 'No' vote looks partisan. That pretty much guarantees that a 'No' on the second nominee will look like a political power play, too, even if the nominee is the cartoon Tazmanian devil of right-wing idealogues -- spinning like a buzzsaw into the hearing room, frothing at the mouth and shouting incoherently about hanging the Ten Commandments on every classroom wall.

With that thought in mind, the left is wisely playing this one down. It seems that by and large, this isn't a fight they want to pick. On the front page of, there's not a word about the Roberts nomination. On the Democracy for America (formerly Dean for America) homepage, there is also an eerie silence -- again, no hearings stuff whatsoever. The Web site of the Democratic National Committee, which Dean now heads, doesn't condemn the nominee; rather, it asks, "Is John Roberts committed to basic rights?" It then offers summaries of Roberts's positions. One could argue that those summaries don't cast his positions in the most positive light, but the bottom line is that the DNC isn't demanding Democrats fall in line in opposition of this nominee. NARAL, on the other hand? Very, very upset. The front page -- which is entirely devoted to the nomination fight -- screams, "The battle for the Supreme Court has begun ... Don't let his choice end yours." People for the American Way is so opposed to the nomination that it has created a splinter Web site:

On the other side of the ravine, as of 6 p.m. last night, the Republican National Committee had a press release linked from its from page that's headlined, "Day 1: Democrats Attack; Forget the Past ... Democrats Suggest Roberts Should Reveal His View On Certain Issues." Trouble is, the release takes quotes out of context. It quotes Biden talking about specific issues -- such as using brain scans to determine someone's predisposition toward violence -- that are likely to come before the court during Roberts's tenure as if Biden is suggesting he will ask the nominee exactly how he would rule on those particular issues. The venemous press release omits the context. Biden is using these examples to highlight the importance of understanding how a judge views the constitution. Will he interpret it with an eye to how things have changed since the 18th century, or will he interpret it very narrowly, which would not necessarily allow for full consideration of technological advances and the moral questions they raise, for which our Founding Fathers could not possibly have accounted?

Jeff Berman, writing in the Supreme Court Watch blog at TPMCafe, pointed out an interesting juxtaposition (not a contradiction, mind you, more like a shift in emphasis) between what Sen. Orrin Hatch said at a 1997 Federalist Society meeting and what he stressed yesterday during his opening statement at the hearings. In 1997, he focused on the need to "be more dilligent and questioning" of Clinton judicial nominees in part because "they tend to have limited paper trails." (Sound familiar?) Yesterday, Hatch said that while senators will ask a lot of questions, the nominee must consider his judicial ethics in answering those questions. "You must decide when that obligation is more important than what senators, including this one, might want to know."

Memo to Debaters: We'll probably see a lot of statements from senators of both parties that run contrary to things they said while Clinton's nominees were undergoing the confirmation process. When you come across these tidbits, share them! Somewhat related example: Remember back when the Republicans were the minority party in Congress and they quite liked the filibuster, while the Democrats found it to be a tool of obstruction? How times have changed!

By Emily Messner |  September 13, 2005; 5:00 AM ET  | Category:  Beltway Perspectives
Previous: John G. Roberts: Unlikely To Be 'Borked' | Next: Voting for the Next Nominee


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It's kind of interesting to see all these Senators get worked up over what seems, honestly, to be a foregone conclusion. Other than Ted Kennedy, who has almost become the radioactive steam valve of the Democratic Party (pissed off? Just let the politically nuclear guy say it; there's something liberating about watching someone who can't go up or down in action), only Joe Biden seems to think anyone really gives a damn about what is happening during these hearings. The real fun is going to come with the next nomination.

Posted by: Aaron | September 13, 2005 03:58 PM

I agree whole-heartedly with Aaron; and quite frankly, an exchange on the court, Roberts for Rehnquist, might end up with Roberts more like O'Connor than like Scalia and Thomas. I'm surprised to read that the GOPers are throwing punches already--considering this sounds like a dignified query into Robert's ideology, I would suspect the GOPers should emphasize their bipartisanship, their working with Democrats to get solid answers from Roberts, and their hopes for a more united Senate with regards to the vote. But I guess that's one consistent message from the right--divide America and carve it up for their own uses.

Posted by: Rusty | September 13, 2005 05:03 PM

To many blogs, so little time.

I wish all of the SCOTUS debates would remain with the blog dedicated for it...

[Which goes so fast it's hard to keep up!]

and this one would be more about the other pending issues.

That way the posting base don't have to jump through too many links to keep up. It divides the time to make any blog their "home" base (there is a thing about poster loyality and familiarity -- and we can't post on 100 blogs at a time!).

As for the new debate.....


These confirmation hearing ARE a three ring circus. You won't see any fake blood, body slams, or bloody photos with DD from CourtTV giving the drop by drop descriptions, yet it is a circus when these politicians AREN'T doing their job and acting like clowns in public life. They're spending too much time gloating to their special interests, and not letting the damn guy talk. We're not getting enough meat from Roberts to actually know w-h-a-t HE thinks.

Olson is right on the money on the freak show these committee style meetings have become. And it's a shame, because the public needs to know more about who we're getting, not have politicos grinning and mooning to the cameras and trying to tell us what THEY think.

We have blogs and forums for that!!


Posted by: SandyK | September 13, 2005 05:24 PM

One reason why the Republicans can continually walk over the people of this country is that Democratic leadership is too damn stupid to pour piss out of a boot.

The idea that there should be no "litmus test", for example, is a crock. We will have to live under the rulings of this sonofabitch for the next 30 years -- we should certainly know what his judgement is on major issues. We certainly should be confident that he will enforce the Bill of Rights --and if he won't he shouldn't be confirmed.

Where the Democratic Senators are stupid is that they don't realize that the way to do this is not to just ask him about Democratic issues like abortion, blah blah blah.

The Democrats should be asking Roberts questions about issues that the Republican base strongly cares about -- and force the Republicans Senators to explain to their base why they don't want Roberts to answer. Some examples:

1) "Mr Roberts,Louisiana lies within the federal judiciary's Fifth Circuit Court. The Federal Appeals Court of the Fifth Circuit has recently ruled that the Second Amendment gives US citizens the right to own firearms. (US vs Emerson). Attorney General Ashcroft acknowledged that the Second Amendment gives individuals a right to own firearms in his arguments in US vs Emerson.

The 14th Amendment states that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ". The US Constitution and US Code 10 USC 333 state that the President is obligated to use the US military and National Guard to intervene within a state if the constitutional rights of US citizens in that state are being violated.

Yet the city of New Orleans is confiscating the firearms owned by law abiding citzens of that city.

Mr Roberts, does not the law require that President Bush uphold the constitutional rights of the people of New Orleans by taking command of the National Guard of Louisiana and ordering it to halt the confiscation of firearms?

2) Mr Roberts, the 4 million members of the NRA support the Second Amendment as part of the Constitution's checks and balances. For this reason, they strongly supported election of the Republican Congress and of Mr Bush as President --in response to President Clinton's attempts to control guns.

The NRA's argument is that the Second Amendment is a bulwark against future Presidents ever attempting to become dictators during a national crisis.

Yet several major Constitutional barriers have fallen during the Bush Administration.

For example, the Constitution expressly prohibits cruel and unusual punishment. Yet the US Attorney General Gonzales has argued that the WHite House has the right to torture US citizens if it suspects they are tied to terrorists. Do you think the Attorney General is correct?

3) Mr Roberts, the Supreme Court has ruled that the Republican Congress has given our Republican President the right to imprison US citizens for years without a trial by jury.

Yet the US Constitution provides for the right to trial by jury and allows Congress to suspend that right only after Congress has declared war. In fact, trial by jury is a right enshrined in Angle Saxon law for at least 1000 years. The reason is that juries can convict and execute traitors but they can also free citizens who are victims of concerted government injustice.

The most recent such case was the Randy Weaver case during the Clinton Administration. The Justice Department asked a jury in Idaho to convict Randy Weaver of murder so that he could be executed. Not only did the jury find Mr Weaver not guilty, the Justice Department ended up giving Mr Weaver and his children $2.1 Million and an apology in order to forestall further congressional investigation into the FBI's actions in shooting an unarmed Mrs Weaver. The federal courts ruled that the State of Idaho had the right to try the FBI sniper for manslaughter.

In view of this, do you agree with Supreme Court Judge Anthony Scalia's scathing denunication of the recent Court ruling that the Republican Congress indirectly suspended habeas corpus in its Sept 11 resolution and has given our Republican President the right to imprison US citizens without trial --without the right to confront their accusers?

Posted by: Don Williams | September 13, 2005 09:15 PM

Ted Olson has some kind of gall to lecture the rest of America on partisanship. Many of us knew in the nineties that Teddy's worries about Monica Lewinsky were distracting the country from serious matters. Ted Olson devoted a decade of his life to trying to bring down a legitimately elected Democratic President. IF you want to blame somebody, look in the mirror. What a hypocrite.

Posted by: Marcella | September 14, 2005 06:46 AM

It's good to see that blogsters exhibit all the vitriol and divisiveness that our politicians are accused of. At least we know that elected representatives are an accurate reflection of ourselves. Now, as to substance -- despite all the pre-game announcements (such as Ted Olson's) the Roberts hearings were a non-story. A more qualified candidate for the Court, that has any hope of spanning the vast right-left chasm in America, would be extraordinarily hard to find.

Posted by: Jay | September 20, 2005 03:11 PM

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