Redstate

"Man pets dog" is not news. If we're being honest, we'll all admit that we're really only care about the Democrats' approach here.  If I was flicking passed and saw a Republican asking the questions, I'd come back later, too.

I thought Sessions asked some potent questions in a very fair manner, and was by far the best questioner today. Then I would put Feingold, since he seemed to want to have a discussion, even if the discussion had to revolve around him. Feinstein, Upchuck, Teddy, they were all posing and preening for the liberal zillionaires.

Not a single GOP senator seems to having taken Roberts big hint from the opening statement - if you're ahead, run out the clock! Only use 1/2 or less of your time.

If nothing else, it'd be fun to watch one of the GOP guys make a speech to the democrats, and conclude by asking Roberts if he agrees!

Am I missing some committee rule that specifies the time alloted, and if unused by one member, any spare time may be used by another, even opposing member? Why doesn't a GOP member simply pass? Force a vote a few days earlier than planned, and get on with the fun and games about the next nominee.

Somebody please disprove how inflated your ego seems by ceding the spotlight.

Everyone seems to be hanging on Roberts' every word about privacy or religion or precedent, when we all know he's going to rule how he thinks he should rule regardless of which idiom he used before this committee, and all each and every senator wants is to impress his/her base and vote the way that will get him/her reelected.

My only hope out of these hearings (disclaimer - I'm a liberal, but I think Roberts more than deserves confirmation) is that Feingold got him to lean toward putting SCOTUS arguments on TV.  THAT would be good theater.

KYL:

[...]

Now, Judge Roberts, one of the themes in the statements of my colleagues, particularly on the other side of the aisle here, yesterday was an expression of concern that you might, as a Supreme Court justice, undo what they describe as progress. This progress is represented for my colleagues by some of the court's decisions over recent decades and also by some legislation. KYL: My colleagues expressed a heartfelt concern for preserving this progress. Another one of my Democratic colleagues endorsed a standard that a past member of this committee articulated for evaluating nominees. He asked: Will the nominee expand or contract freedom? You recall that. Progress and freedom: I think any American would find it quite difficult to quibble with these two ideals. I do not think that you will find a member of the Senate who would not express support for both progress and freedom, and for many of the specific reforms that have been discussed. But as I thought about those two words last night and about my colleagues' genuine concern for protecting what they understand as progress and freedom, I began to ask myself what those two words actually mean in the context of your nomination and the court's function more generally. When can we say that a particular decision by the Supreme Court expands or contracts progress or freedom? Actually, it's more complicated as you stop and think about it. For example, earlier this year, the Supreme Court issued a decision that allows the government to take one private individual's property, to transfer that property to another private individual or entity. The court's majority held that such an action is consistent with the Constitution's public use requirement for takings of property, so long as there is some indirect benefit to the government, so long as, for example, the government expects to receive more tax revenues from the second party's use of the property. All of the most commonly described liberal members of the Supreme Court joined in the opinion. And I'm certain that the types of involuntary, government-engineered development projects that this decision allows will be viewed by many as progress. I'm not so sure. Is it really progress for one more politically influential private party to be able to use the government's power of eminent domain to take another less politically connected individual's property? KYL: And this is constitutional so long as the government anticipates increased tax revenues? I don't think this precedent represents an advance of either progress or freedom, in other words. In 1975, the court issued an important decision giving public school students the right to hearing before they're suspended for disciplinary reasons. And the net effect of these decisions, as many school administrators and teachers have told me, has been to make school discipline much harder to implement and enforce. The procedures, for example, for removing a disruptive student from the classroom have become sufficiently involved that in many cases the school simply doesn't do it. The student remains in class and the other students' learning suffers. The writer, David Frum, has described this line of Supreme Court decisions as the bad king's Magna Carta. Well, many older teachers, in particular, can describe the decline in school discipline and order that followed from these decisions. And so I'm not sure that even though many would subscribe to the decision of the court, that it really represents an advance of freedom or progress, especially if most children are less free in their school environment.

KYL:

[...]

But I wonder if you could elucidate, particularly for those who are not learned in the law, what the difference is between dealing with a case, an issue of constitutionality, per se, or in an as- applied context; and how it is possible, for example, in case number one, to uphold the constitutionality of the law on its face, for example, and yet in case number two, it comes down a few years later to declare that in that situation, the statute is unconstitutional as it's applied to the facts of that case. How can that be?

ROBERTS: Well, the distinction is a basic one in constitutional law. If you have a facial challenge to a law, as we call it, or a per se challenge might be another way to put it, you're basically saying the law is unconstitutional without regard to the facts of the case, without regard to the record. Whatever the application might be, whoever the parties challenging it might be, there's something about the law so fundamentally flawed that it's unconstitutional however it's going to be applied. That's a fairly narrow category of cases. The other category is so-called as applied challenge. You have a law that you know is not facially unconstitutional, but it may be applied in an unconstitutional manner. An easy example -- you have a normal statute that's perfectly constitutional. If it's applied in a discriminatory manner, it may be unconstitutional as applied in that case. If it can be applied in a constitutional matter, so long as the facts are a certain way and if the facts turn out in the record not to meet those requirements, then it can be unconstitutional as applied. ROBERTS: And in those situations, you do need to know what the record is, you do need to know what the facts are, because the challenge might be this law might be fine for other cases but when you apply it to this case, when you apply it to this record or these facts, then it's unconstitutional. So a statute that is constitutional on its face can always be applied in an unconstitutional way and so you can't give a categorical determination that there's no way in which that statute could ever be unconstitutionally applied.

KYL: And this is another reason why when you're asked, well, would you agree that a certain decision is a good decision and should be maintained as part of our jurisprudence and so on, in addition to not wanting to give a hint as to how you might rule on a case, to some extent it's impossible to say because you don't have the facts of the case before you and the facts of case A could cause you to render a different decision than the facts of case B.

ROBERTS: Well, that's right. And particular precedents, obviously, could be applied to variations on the fact situation that gave rise to that precedent. And sometimes those facts lead to a different result, sometimes those facts don't and it makes sense to continue to apply it in a particular manner. But, again -- and I think most judges are of this view -- that the facts are a critical part of the resolution of any dispute.

KYL: I know perhaps to non-lawyers this can cause frustration: Well just tell me one way or the other. But judges have got to be fair to make sure that they don't treat all cases as the same, because the fact differences could make the difference between your ruling one way or another in a case. And every litigant probably feels that their case is a little bit unique. Judges need to think about that and certainly need to be willing to consider that this person's case might be unique and, therefore, it has to be looked at in a way different than a similar, but perhaps not identical case.

ROBERTS: Well, of course, that's a lot of how the law develops. And it's lawyers arguing in court, a lot of what -- or I used to spend my time doing was saying, This precedent doesn't apply. And the reason it doesn't apply is because these facts are different, and so you should reach a different result, or arguing that, This precedent does apply even though these facts are different. The reasoning still covers that situation. And then that leads to the next case and so on.

From:

http://www.kansascity.com/mld/kansascity/news/12635046.htm

If not, that's a missed opportunity...

Yes. (Thanks for posting it.  It was an awesome read.)

Good TV? No. Pretty dry.  The people who need to understand these things better don't want to.

I was referring to the idea that Republicans asking prudent (albeit possibly fascinating) questions isn't what the world has been curious about in the run-up to these hearings.

Sad, but true.  I think CNN knows that people who just want to see the hearings from gavel to gavel can watch C-SPAN.  They are looking for political theatre.

I think CNN knows that people who just want to see the hearings from gavel to gavel can watch C-SPAN.  They are looking for political theatre.

Actually, I think they're just looking for Dem 'talking points' to flaunt.

I don't think it's partisan bent for CNN or any other network to pull away from an event that isn't news, and watching Senators Grassley, DeWine, Kyl, etc lavish praise and throw softballs at Senator John Roberts, is certainly not going to create news nor be news.  If these senators showed more of a penchant of asking real questions and taking their advice and consent role a bit more seriously in ensuring the American Public that it is confirming a worthwhile jurist, by asking probing interesting questions (see Hatch, Orrin and Spector, Arlen), I think they would televise these senator's allotted question time in full.  

I also think that one of the downsides of the GOP congress having become a virtual rubber stamp for the Bush agenda is that the talk coming out from many members (certainly not all) of the GOP Senate Conference and that of the President each day are so similar and the lack of indepenence and Spine that the GOP Senate leadership in its dealings with the President have driven themselves into a certain amount of irrelevancy so that when a Senator Sessions is lavishing praise upon Judge Roberts, I mean isn't it more of just the same.

I say all of this with the sincere belief that if the roles were reversed, and there was a President Gore or Kerry nominnee, the GOP Senators asking real, probitive questions would get much more TV time than watching Ted Kennedy and Chuck Schumer lavish praise upon whomever that nominee would be, because it would just be more interesting and more likely to create news.

Kidding, sort of

But I did here an interesting take on the hearings today.

The only way Roberts can lose is by saying someting stupid. And Roberts can't say anything stupid while the dems are giving long speeches.

The better strategy for dems would be to ask numerous short questions. But that assumes the real strategy is to beat Roberts rather than hear themselves speak.

Notice Schumer's shave and haircut?

Sure seems to me that the actors are reciting their lines for different audiences, and yes, that makes bad theatre....but Judge Roberts seems incredibly intelligent, patient and poised.  For me, a plain old American citizen (mostly on the Left), he seems like he will look at issues fairly and with a proper nod to the Constitution and contemporary context. I may not agree with him politically, but his background and temperment suggest that he will weigh issues with due thought, a broad perspective, and a consideration of the effect of his rulings on our society.

I hope I'm not wrong, but I think he was a great choice for Chief Justice.

If you're playing not to lose, you won't win. If you sit on your lead, you'll lose it. Running out the clock doesn't work (unless, of course, it's high school ball and there's no shot clock).

And stated that liberals wanted judges to continue to rule for progress and freedom but that they failed to describe what they meant.  He went on to point out that all the liberal members of the Supreme Court voted to take private property away from one private citizen and give it to another.  He failed to see how that improved either progress or freedom.  And of course the "question" went on for about 5 minutes.  

Judge Roberts, naturally, didn't say anything about the specific ruling and said that judges should interpret the constitution etc.

If CNN cut away from Sessions (R-Alabama) they deprived their audience of the most interesting part of the whole hearing.  

Roberts expounded at length on the inner workings of the court in a very interesting presentation.

I was very disappointed when Sessions cut him a little short.  In real life, that information was 1000 times more valuable and enlightening than the gajillionth time some Democrat asked the exact same question about the Right to Privacy or whether or not he thought women should walk two steps back.

With a lead like this, it's time to rest the starters and get ready for the next game.

Unless there are more markers the GOP wants to lay down for the Owens/Estrada/Brown/Luttig/take-your-pick nomination, might as well save some reserve ammo for another fight.

The discussion with Kyl about the role of foreign law in constitutional decisionmaking was very interesting, I thought, and substantive. Hardly a softball question, and I thought what Roberts had to say about it was illuminating (and encouraging from a conservative perspective). I find it hard to believe CNN would have had something better to put on the air at that precise moment.

...but isn't it true that while working at a convenience store that you once argued that a child should not get a refund on her melted candy bar simply because she left it in her pocket on a particularly hot day.

I think the American people have a right to know why you hate children.