Stuart Buck has a good collection of highlights from today’s hearings. They are pretty much the same ones I noticed — and they show Judge Roberts’s nicely understated sense of humor.
When Michael Kinsley first arrived at the L.A. Times, I wasn’t impressed. He was famously liberal, having occupied the “left” seat on “Crossfire” for many years. His very first day on the job, he ran a column by Erwin Chemerinsky on the Pledge of Allegiance case, which failed to disclose that Chemerinsky had advised Newdow on the brief and his oral argument presentation. I wrote Kinsley about this, and he completely failed to respond — something that, I’m told, he does to a lot of people. His columns were initially unsatisfying, sometimes verging on courage, but never quite making it — as exemplified by his silly column on judicial activism.
But I came to appreciate Kinsley. He threw open his ideas on Social Security to the blogosphere and was respectful about the results. And he was the one who came up with the idea of the Outside the Tent feature, which I consider to be the most courageous thing this paper has done in ages, with the possible exception of last year’s series on MLK Hospital. He came up with the idea of the “wikitorial,” which many declared a failure because it was defaced with porn by scumbags, but which I considered a bold experiment in interactivity.
Kinsley also got bolder with his opinions, bucking the editorial line on Judith Miller’s assertion of journalistic privilege, and most recently taking on the critics of Bush over Katrina.
In short, I was starting to become a fan.
So naturally, they had to can the guy.
I guess the only consolation is that Kinsley’s former spot is being taken over by Andres Martinez, who has shown some ability to be an independent thinker.
But the bottom line is what Xrlq said to the publisher today: “There are a lot of things broken at your paper that needed fixing. Michael Kinsley was not one of them.”
I didn’t see all the hearings today yet, nor have I yet reviewed all the transcripts. But I have a pretty good idea which was the stupidest question that anybody asked all day, and you can read it here:
KOHL: Judge, in the aftermath of Hurricane Katrina, we all saw that those who suffered the most were those who had not been able to take advantage of the great opportunities that our great country has to offer. As we found out, those without employment opportunities and educational opportunities simply did not have the means to escape the storm and the flooding.
As you seek to become the head of the judicial branch, as you seek the position of chief justice of the United States of America, what role would you play in making right the wrongs revealed by Katrina? And what role do you and the judicial branch play in making sure that we as a nation keep on moving forward toward providing equal opportunity to all Americans?
What a dumb question. Roberts tactfully chose to answer the second one only:
ROBERTS: The last part of your question, Senator, is of course really what’s carved on the entrance to the Supreme Court, equal justice under law. That is the commitment physically embodied in the Supreme Court, and it’s the commitment in the Constitution.
And I think the most important thing the Supreme Court can do, and the judicial branch can do, is to uphold the rule of law.
That is the — I tried to point this out in my statement yesterday.
That is the key to making all the rights that are in the Constitution, all the rights that legislators may confer on citizens, that’s the key to making them meaningful.
The difference between our system and our Constitution and the Soviet constitution that President Reagan used to talk about — it has wonderful rights in it, too; it didn’t mean a thing because there was not an independent Supreme Court, an independent judiciary to support the rights.
We do have that, and that’s the reason that we have been able to make progress in the area of rights and not had just empty paper promises.
So to the extent you are talking about the injustices in society and the discrimination in society, the best thing the courts can do is enforce the rule of law and provide a level playing field for people to come in and vindicate their rights and enforce the rule of law.
But as often happens with dumb questions, the questioner really wants an answer — and Sen. Kohl really wanted an answer to his silly Katrina question:
KOHL: In spite of all of our laws and all of our rules, we still saw what happened down in New Orleans. And the people who were left behind were people who had not had educational or employment opportunities.
And the question I asked was whether you, as a person who aspires to be the chief justice of the United States, sees a particular role other than continuing the role that you observe we are following now, particular role for improving our ability to respond to the needs of those people who live under those circumstances?
Roberts, I’m sure, was thinking: “Not my job, dummy. That’s your job.” But instead, he answered quite patiently:
ROBERTS: Well, the courts are, of course, passive institutions. We hear cases that are brought before us. We don’t go out and bring cases. We don’t have the constitutional authority to execute the law. We don’t have the constitutional authority to make the law.
Our obligation is to decide the cases that are presented. Now I’m confident, just in the nature of things, that there will be cases presented arising out of that horrible disaster, of all sorts. And many of those will be federal cases, I’m sure. Others will be in the state courts.
And again, the obligation of the federal judiciary and the state judiciary is to make sure they provide a place where people can have their claims, their litigation decided fairly and efficiently, according to the rule of law.
That’s the appropriate role for the judicial branch.
It sounds like it came from Ace’s parody from the other day — but it didn’t.
[Posted by the Angry Clam.]
Today two packages arrived for me.
One was from Amazon, and contains a copy of Justice Breyer’s new book Active Liberty.
As some have speculated, it does appear to be an update (or rehash, depending on how things turn out) of John Hart Ely’s Democracy and Distrust. Reading this book will be interesting, since Justice Breyer has set himself up as the intellectual and jurisprudential counterweight to Justice Scalia, facing him in various debates about constitutional interpretation, the use of international law, and the like. Indeed, this book could very well be in emulation of Justice Scalia’s A Matter of Interpretation, although I would point out that Justice Breyer does not allow criticism of his views to share space in his slim volume, as Justice Scalia did.
In any event, I’ll be reading that this week, and will provide a fuller report in the coming days.
The second package, however, is getting much more use already: my ipod nano arrived directly from the factory in China via FedEx today. I don’t have a review for you, really- it’s an ipod, but way smaller. I’m mostly just bragging about this.
I want you to know that I am approaching the Roberts hearings with an open mind. I have every expectation that Senators Schumer, Kennedy, Leahy et al. will conduct themselves in a dignified and fair manner. I have to warn them, however, that if they should take cheap partisan shots at the nominee, as they have often done in the past, I may have to lose respect for them. That would be gravely disappointing. But — and I say this in all sincerity — I am not going to prejudge the issue.
Oh, sorry. For a second there I thought I was a United States Senator. Why else would I tell transparent lies about keeping an open mind, when I reached a decision on the issue long ago?
[Posted by The Angry Clam]
Well, so much for Arlen Specter not freaking out about Roe v. Wade…
And it’s only 9:35 AM.
UPDATE: 9:43 AM – and he breaks out “superprecedent.” Just remember, everyone, Bush supported this guy over Pat Toomey.
UPDATE x2 FROM PATTERICO: I loved Sen. Hatch’s description of the concept as “super-duper precedent.” Sometimes his goofiness comes in handy.
UPDATE x3: Arlen Specter, giving interviews on C-SPAN at 12:53 PM: “That [abortion] is the most important issue in this confirmation hearing.” Remember, it’s all about abortion no matter how much liberals, both Republicans and Democrats, scream that it is otherwise.
UPDATE x4 FROM PATTERICO: Watching the re-runs, I see that Sen. Specter first mentioned the concept of “super-duper precedent.”
The erratic but eloquent Christopher Hitchens will debate
Gorgeous Gruesome George Galloway tomorrow night at 7 p.m. Eastern (that’s 4 p.m. Pacific for the subtraction-challenged). Hitchens discusses the upcoming debate here. You can access the debate online as it happens, here.