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Tuesday, September 13, 2005

If You Like Poker

In case you haven't seen it, here is what seems to be WaPo's running transcript of the Roberts hearing. I enjoyed this. Specter just sticks with Casey and stare decisis on Roe. Leahy presses on War Powers, and whether Congress has the ability to end a war by passing a resolution to that effect. Hatch brings up some interesting issues and revisits Casey. Kennedy fires off questions and doesn't give Roberts time to answer them!

The second page has Grassley and Biden.

The best moment is when Roberts is in an exchange with Hatch, and he comments on judges making the law:
I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases. ...

But certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases you do need to focus again on the question of legitimacy and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.

You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there.

They say, "We don't think it's too much for a baker to work" -- whatever it was -- "13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all."

That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. ...

There are those more academic theorists who say, "It's a question of degree. And since it's just a question of degree you shouldn't try to draw the line because it's hard sometimes to interpret the law without making the law. We should throw our hands up and say, 'Well, judges make the law,' and proceed from that."

That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making the law rather than interpreting it.
This exchange with Grassley is funny. Grassley asks Roberts to react to a Cardozo quote:
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is not to yield to spasmodic sentiment, to vague or unrated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life -- wide enough in all conscience is the field of discretion that remains."

GRASSLEY: What do you think Justice Cardozo meant by that passage? And do you agree with it?

ROBERTS: I know I agree with it. Now let me figure out what he meant by it.
I suspect this is a rather wry comment on the mornings' encounters with the senators, and it got a belly laugh from me, because a great deal is going on in these hearings. Each senator is trying to make his own political points, for the most part, and the focus is less on really eliciting Roberts' opinions then on shoring up their own cases for his confirmation or against it. This is a poker game on a grand scale, and it is fascinating history in the making.

It tells us little about how Roberts would rule on various cases, but a great deal about the type of man he is. Most of these guys would lose their shirts in a poker game with him. I am not surprised at all that Bush picked him.

I would like to write more on Casey and stare decisis later. Ann Althouse has brief summaries of the highpoints of the first morning session.

For yesterday, Carl of No Oil For Pacifists has rounded up some interesting links.

That Cardozo quote and response will recalled for years.

Teddy K is still a jackass. I never thought I'd hear my self suggest that he have a drink and chill.
Iced tea! And a sedative. He was kind of losing it, or maybe he wanted to appear that way.
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