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Thursday, September 15, 2005

RANDOM OBSERVATIONS ON THE JOHN ROBERTS HEARINGS . . . 

. . . which I listened to off and on this week (a little too on for my own good work-wise, frankly):
  • Roberts' extraordinary adroitness at parrying the senators' questioning owes itself to his own personal skill, of course, but it is also rooted in his long pre-bench experience as an appellate litigator, particularly before the court which he will undoubtedly soon be joining. Effective oral argument in such forums is really nothing more than answering questions, sometimes quite unpredictable ones, with grace and persuasiveness. As such, it's ideal preparation for the confirmation process. Combine this with the fact that most appellate litigators are usually far too busy with their work to create the unfortunate paper trails that so often dog those promising judicial candidates who have either taught or served on lower courts for many years (*cough* Richard Posner *cough*), and one wonders why more of them aren't tapped for the Supreme Court.

  • If the senators had really been interested in drawing out Roberts on his judicial philosophy in the face of his nimble (and well-advised) avoidance of all live or incipient cases and issues, they'd ask him about some prominent dead ones--the original, economically-oriented version of substantive due process espoused in Lochner v. New York, for instance, or the long development of the "clear and present danger" strand of First Amendment law that culminated in Brandenburg v. Ohio, or the Warren Court's revolution in criminal procedure emblemized by Miranda v. Arizona. By "dead" I mean only that these cases are no longer (as far as I am aware) subject to serious challenge on a doctrinal level; they are still very much alive in the competing concerns they embody. Roberts said a little bit about Brown v. Board of Education, Griswold v. Connecticut, and a few other such cases, but there was much, much more he could have been probed about along these lines, and in a way in which I think he could have felt comfortable in responding. That the senators--on the left and the right--had no apparent interest in walking down this road speaks volumes about their true concerns.

  • Joe Biden makes my skin crawl. His faux folksiness, his strangely binary stances of genuflection and condescension ("oh, Judge, Judge"), his petulance ("but my time is almost up!")--all of it is off-putting to the extreme. When Dana Milbank has the same reaction, I know I'm not imagining things. And this guy is thinking of running for president?

  • Charles Schumer's comparison of Roberts and his deft sidestepping to the position of someone who professes to be a film fan without ever revealing which movies he likes, and Roberts' quick-witted response, were genuinely amusing. While we're talking movies, let me nominate The Third Man, not because it's a great one (though it is), but because Roberts:

















    is a dead ringer for Joseph Cotten:


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