Tuesday, September 13, 2005

John Roberts cleverly deflects scrutiny...

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I have been impressed by John Roberts via what I've been able to enjoy of the hearing via the wonders of C-Span. He's bright, amiable, and deeply thoughtful, with an apparently balanced perspective. The fundamental position he has taken... to be an open minded, objective, and independent enforcer of the Constitution... is especially appealing at a time of such deep ideological and partisan divisions.

But, a couple of things have given me pause.

The first, trivially, has been the excruciating, vomit inducing, lecherous flattery of Senator Sessions... ughhhh! What a smug, self satisfied, party goon, ironically employing none of the adept political skills that Roberts has slickly demonstrated throughout the proceedings.

The second problem I have is the sporting analogy Roberts used in his statement on Monday: "Justices are like Umpires..." he remarked, "I will remember it is my job to call balls and strikes, and not to pitch or bat."

Evocatively put and certainly worthy of a News Soundbite... but the role of the Supreme Court isn't simply to enforce the constitution, independent of the other branches of government, as important as that role is. It is also its role to ultimately interpret the constitution... for justices to apply their faculties and perspective to cases, laws, and precedents, and their relevance. It's this degree of interpretation and personal perspetive, no matter how small, that is inherently subjective and deserving of serious scrutiny. I mean... doesn't it defeat the whole purpose of these hearings for Roberts to fundamentally define himself as someone who will objectively uphold the constituion... as if that precludes scrutiny of the way in which he subjectively interprets law?

What frustrates me is that nobody has been able to scythe through this political posturing and get to the heart of the matter... these hearings should provide an explicit demonstration, in the most general terms, of the type of Justice that Roberts will be... and I don't think that is taking place.

There are some other smaller niggles that I have. Does Roberts really have the seniority and experience to be Chief Justice? I am not familiar enough with the role of Chief Justice and its history to have a real sense of the required qualities, but Rehnquist struck me as someone who asserted himself in the position and led the court. By comparison it seems like Roberts' age and good health is more of a factor than his ability to lead. In fact, thus far, I haven't detected any leadership qualities in Roberts at all... is there a reason why nobody is challenging this?

And then Dianne Feinstein's probing questions about the role of Church and State, quoting JFK as regards the "absolute Separation..."

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Roberts seemed to take issue with the word "absolute" citing the complexity of recent Supreme Court rulings. But, when Feinstein expressed the history and importance of the law, the affection for its role in building the type of society that America is, and that these factors were the intended result of what the founders tried to accomplish, Roberts sharply countered. He stated that those who originally came to the US were fleeing religious persecution, and that this ultimately informed that element of the constitution. The two statements aren't really even mutually exclusive, but Roberts actively sought to disagree with Feinstein's attempts to laud "separation," which I found to be a little disconcerting.

I'm not saying that any particular point of view on Church and State might discredit him, and for sure, whatever is discussed should never compromise cases he might hear in the future... but in that brief exchange with Senator Feinstein, Roberts identified why the role of an "Umpire" is more complex than his analogy of "calling balls and strikes." I just wish we didn't have to depend upon such ambigious speculative inferences to have an idea of where John Roberts really stands on these issues. I wish, via some kind of mechanism, this process of confirmation wasn't such a blind act of faith. I mean... what is the point of having hearings at all? As things stand everyone might as well just sit around and give a speech in turn. The dialogue is redundant.

Right now, I don't see any basis upon which Roberts shouldn't be confirmed. I agree with the "Gang of 14" that President Bush has earned his nominations to the Supreme Court via election victories, and only the most extreme of circumstances should deny him this. No extreme circumstances have arisen as of yet.

Personally, I just wish we were getting to know the type of Justice Roberts will be a little better. I just wish we weren't witnessing such a polished political display more appropriate of the questioning Senators than a Supreme Court nominee. I just wish Roberts would be more forthcoming and willing to share his perpectives and subjective analysis of law with the American people.

Special mention to Roberts' son, who never fails to bring levity to this esteemed process:

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Eban Crawford said...

Truth is, nobody can get a read on him. He seems so mild, I think that is what freaks some out. People wonder what lies beneath.

He is all but assured to get through almost completely unscathed. The thing is that the people that should be rooting, i.e. the far right, are starting to get freaked. Coulter, Joseph Farrah, and ohters are really worried about this guy.

I really do not have an opinion. The guy is kind of a closed book to me.

I do think that the baseball comment was more of a stab at recent judicial activism where the courts have been trying to write law rather than interpret and enforce.

The guy is still an unkown, either way. I guess we will see.

Wow, a whole comment with no Hillary mentions. Oops, there it went, lol.

Graham said...

Hey my friend,

Ahhh, Hillary :). I'm actually starting to land pretty firmly in Bayh's camp at the moment... despite my school boy crush on the former first lady. I get the feeling that her stature is a little manufactured at the moment, and her politics and centrist aspirations somewhat insincere. A lot of Republicans are saying really nice things about her and I wonder if that is genuine respect or hopefullness on their part. I'm keeping an open mind. I do like Hillary a lot as u know, Eban ;).

Yeah I think you're right about contrasting this image of objectivity with liberal activist judges. But, I think it serves the purpose of not really having to give too much away. And, like you say, this doesn't just affect those on the left... it also affects those on the right, it affects everyone. Do any of us really know what we're getting? Shouldn't these hearings be the means by which we begin to understand?

Hope you're doing good, Eban, and that your podshow is going from strength to strength. I saw the biggest f*$king spider the other day... it just crawled up on the floor next to me, and it was hairy and had a pattern on its back... anyways I thought of you guys in Littlehampton and that podcast u did together bemoaning such insect beasts. It's funny in LA I never saw spiders like u get here. Be well.

Alice: In Wonderland or Not said...

"fundamentally define himself as someone who will objectively uphold the constituion... as if that precludes scrutiny of the way in which he subjectively interprets law?"

That statement alone scares me.
Nicely voiced.

He is not forth coming become he does not have to be, that is the part I do not get. If they do not have to answer certain questions, why are they the questions I feel we need to know.

Graham said...

I know. This is my first real experience of this process, and as impressive as Roberts is... and he is impressive to me... I feel like his confirmation still remains a shot in the dark. There should be some kinds of mechanisms in place in these hearings... like test cases, or something... to identify and scrutinize what kind of judge he will be. Otherwise what is the point of these hearings?

Thanks for the comment Alice :).

parated2k said...

Great article.

To me, he has shown one thing and one thing well, he will not fall into the traps the Democrat Senators, their staffs and the special interest groups have tried to spring on him.

Instead of legitimate "what did you mean by this" questions about past decisions and statements, they chose to take him out of context or misquote him completely. In response he merely smiled and (without notes) repeated the quote how it really appeared.

The guy has made a fool of anyone stupid enough to play politics with him. Unfortunately, since they did choose to play politics instead of ask legitimate questions, they didn't get the answers that should have come out.

By playing infantile games, they gave him a pass.

Graham said...

I agree some of the questioning wasn't too smart. Dianne Feinstein's opening salvo, referencing past comments, was simply attempting to politically tarnish Roberts and I think that backfired.

But, to be fair that hasn't been true of all the questioning. Russ Feingold, who I have repeatedly said that I disagree with as a potential candidate for the Democratic nomination was very reasonable and balanced in his questioning.

jomama said...

Esteemed process.

That's rich.

The kid got it right.

Graham said...

That was kind'a my point :). Thanks for the comment, Jomama.

NYgirl said...

Interesting that many people mention that he is not too forthcoming. Justice Ginsberg wasn't either & she enjoyed a speedy confirmation & was not made to jump through hoops as Judge Roberts was.

Graham said...

Hey NY Girl, I don't have first hand experience with Justice Ginsberg so I can't comment. For me it just seems that this process is virtually redundant because it doesn't really demand real elucidation on the part of the President's nominee. Of course, this is a practical matter as it all relates to cases they might hear in the future... I just can't believe there isn't some mechanism that can be established so as to make this not a massive step into the unknown. There are those who instinctively feel very good about Roberts and the type of Chief Justice he will be, but there are also many on both sides of the political spectrum nervous about what they're getting into. We should have a better sense of where Roberts stands at this stage.

As for Ginsberg, I imagine that people of my political persuasion would not have been concerned by her not being forthcoming, because maybe the unknown was not so potentially unnerving. I imagine others on the right might have felt differently abotu Ginsberg than they do now about Roberts.

The only thing I would say is that I disagree with your assessment of this process with Roberts. I think he is enjoying what will be a speedy confirmation, and I don't see any hoops, or real challenges at all being put in his way.

Thanks, as always, for commenting NY Girl :).