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September 12, 2005
A Fine Performance Amid The Bloviating

Lifes but a walking shadow, a poor player,
That struts and frets upon the stage,
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

When Shakespeare wrote this passage of Macbeth, he assigned it to the eponymous Scotsman mulling over his rebellion. He could well have written it about the opening of a Congressional committee hearing, where the gathered politicians each have a chance to pontificate for endless hours, or at least what seem like endless hours, talking about almost everything that comes to mind. Unfortunately, most of it has no bearing on the actual matter at hand.

Today's opening to the Senate Judiciary Committee hearing on John Roberts' confirmation to the Supreme Court provided an excellent example. Almost from beginning to end, the bloviating reminded listeners why the Senate has produced so few Presidents but so many blowhards. The bloviation may have been the only bipartisan effort by the Judiciary Committee, which will end up splitting 10-8 in all likelihood in recommending Roberts to the full Senate.

Specter had a fetish for the year 2040, projecting to what he saw as the end of the Roberts Era, but then at the end almost argued for Roberts to voluntarily retire in 2020:

Your prospective stewardship of the court, which could last until the year 2040 or longer -- the senior justice now is Justice Stevens, who is 85, and, projecting ahead 35 years, that would take us to the year 2040 and would present a very unique opportunity for a new chief justice to rebuild the image of the court away from what many believe it has become as super legislature and to bring consensus to the court with the hallmark of the court being 5-4 decisions: a 5-4 decision this year allowing Texas to display the 10 Commandments; a 5-4 decision, turning Kentucky down from displaying the 10 Commandments; a 5-4 decision four years ago striking down a section of the Americans with Disabilities Act; and last year a 5-4 decision upholding the Americans for Disabilities Act on the same congressional record. ...

In one of your early memoranda, you came forward with an intriguing thought, one of many in those early memorandas as your conceptualization power was evident that justices ought to be limited to a 15-year term.

And with that idea in play, if time permits, it's something I'd like to explore: voluntary action on the part of a justice, or perhaps the president can make that a condition.

So which will it be? Does Specter expect that Roberts will commit to a term limit, or have the President insist on a voluntary commitment to one? What rubbish.

At least Specter stayed somewhat on topic. Leahy dove right into the murky flood waters of the New Orleans flood, which has bupkis to do with a Supreme Court selection:

Today, the devastation, despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have a federal government, why it's critical that our government be responsive.

We need the federal government for our protection and security, to cast a lifeline to those in distress, to mobilize better resources beyond the ability of any state and local government -- all of this for the common good.

The full dimensions of the disaster are not yet known. Bodies of loved ones need to be recovered. Families need to be reunited. The survivors need to be assisted. Long-term health risks and environmental damage have to be assessed.

But if anyone needed a reminder of the need and role of a government, the last two days have provided it. If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it.

All these good reasons apply to having a Congress that allocates its resources wisely and quits blowing money on pork-barrel projects. None of them have anything to do with confirming a Supreme Court justice who has nothing to do with public policy except to ensure that it doesn't violate the Constitution. If one needed a reminder why Leahy has no fitness to serve on this committee, his selection of Katrina as his first issue in his speech firms it up quite nicely. Leahy wanted to pander to the national news media, which I'm quite sure will reward him with glowing editorials tomorrow morning.

Kennedy, of course, performed at his usual level of irrelevance and hyperbole:

The people have a right to know that their government is promoting their interests, not the special interests.

When it comes to the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink and the food and other products we buy, the people have a right to keep government from intruding into their private lives and most personal decisions.

But the tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own.

I forgot to mention incoherence, didn't I? Not only does Kennedy jump on the Katrina bandwagon, but then he argues against just about every Democratic program ever designed. Government shouldn't set the price of gasoline? Great -- quit taxing it and allow refineries to be built. Kennedy wants the government out of the business of food and drink? Air and water? Can anyone tell what the hell Kennedy was talking about in his speech? This shouldn't have been extemporaneous; these were his prepared remarks.

The only Senator to stay on point was Orrin Hatch. He kept his remarks focused entirely on the confirmation process, running interference for Roberts and leading the way for the jurist to keep his answers within the bounds of ethics and precedent. He spoke eloquently about the brief confirmation hearing of George Sutherland in 1922, when the Judiciary Committee simply forwarded the nomination directly to the Senate floor. (Grassley later mentioned Byron "Whizzer" White's 1962 hearing -- which took all of fifteen minutes, before television made these hearings into spectacles during the Bork debacle.) He reminded everyone that all past nominees have stuck to the so-called Ginsburg standard, and that they have all received bipartisan approval as a result:

This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.

Justice Marshall drew his line, yet we confirmed him by a vote of 69-11. Justice Sandra Day O'Connor drew her line, yet we confirmed her by a vote of 99-0. Justice Kennedy drew his line, yet we confirmed him by a vote of 97-0. Justice Ginsburg drew her line, yet we confirmed her by a vote of 96-3. Justice Breyer drew his line, yet we confirmed him by a vote of 87-9.

We must use the judicial rather than a political standard to evaluate Judge Roberts' fitness for the Supreme Court. That standard must be based upon the fundamental principle that judges interpret and apply, but do not make the law.

Biden, of course, just told Roberts that unless he kowtowed to the Left's litmus tests, he'd vote against his confirmation, having heard nothing of what Hatch spoke:

Like most Americans, I believe the Constitution recognizes a general right to privacy. I believe a woman's right to be nationally and vigorously protected exists. I believe that the federal government must act as a shield to protect the powerless against the economic interests of this country. And I believe the federal government should stamp out discrimination wherever -- wherever -- it occurs.

And I believe the Constitution inspires and empowers us to achieve these great goals.

Judge, if I look only at what you've said and written -- as used to happen in the past -- I would have to vote no. You dismissed the constitutional protection of privacy as, quote, a so-called right. You derided agencies like the Securities and Exchange Commission that combat corporate misconduct as constitutional anomalies, quote.

And you dismissed gender discrimination as, quote -- and I quote -- merely a perceived problem.

This is your chance, Judge, to explain what you meant by what you have said and what you have written.That's what I said when I was chairman. That's what this is about.

And so on, and so on. Not one of the Senators said anything surprising, original, or witty. Not one of them, save Hatch, kept their remarks focused on the task at hand. Every single one of them could bottle their speeches and give Sleep-Eze tough competition in the marketplace.

Roberts, on the other hand, appears to have performed very well, given the circumstances. Not having had access to the remarks made but obviously anticipating them well in advance, he gave a poised, well-reasoned opening statement which sought to allay the fears and rebut the charges made by various members of the committee. In just a few sentences, he communicated what hours of bloviating could not about the heart of the process before us:

Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court. I always found it very moving to stand before the justices and say, I speak for my country. But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.

That opening statement should have the Senators conferring with their speechwriters, scolding them for not having a tenth of the eloquence of John Roberts. It also should put them on notice that Roberts will likely outclass every single one of those foolish enough to try to engage him in a head-on debate. None of them, save Hatch and perhaps Specter, have the intellect for the effort. Kennedy, Durbin, Schumer, and Biden will all try, nonetheless -- and wind up making themselves look even more foolish than ever.

It should make for a much more interesting spectacle than today's self-indulgent yawnfest.

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Posted by Ed Morrissey at September 12, 2005 10:06 PM

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