Wednesday, May 03, 2006
While We Are On The Topic Of The Courts
In common with every other Supreme Court specialist contacted for this article, Professor Lazarus listed several obvious changes. "They're not stepping on each other," he said of the justices. "They take longer before someone asks the first question. They give the lawyers more time to answer."In other words, the man is fair? The article goes on to speculate that if everyone gets to speak his or her piece in conference, the justices feel less of a need to score points in the courtroom. That sounds plausible to me. I wonder how many people were contacted? Were any of them the same people who were so outraged at the 8-0 slapdown on the Solomon Amendment case?
With justices sitting back and allowing colleagues to ask follow-up questions, and with lawyers given an actual chance to answer, there is a new coherence and civility to the sessions.
...he (Roberts) is offering a model of how to ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear.
"Maybe it's because he has so much experience arguing before the court, but he seems to be able to zero in on the weakest point in a case," said Prof. Pamela S. Karlan of Stanford Law School, where she runs the Supreme Court Litigation Clinic.
"Rehnquist told you what he thought," Mr. Phillips said. "He wasn't struggling to figure out the case. Roberts doesn't tip his hand as much. He asks hard questions of both sides without communicating his own preference."
In another distinction between the Roberts and Rehnquist styles, Chief Justice Roberts is reliably said to be presiding over the justices' private after-argument conferences with a lighter hand, not watching the clock as closely and permitting more conversation.
All of this makes me think of the agonized wails emanating from the NY Times during the nomination process. The breathy editorials. The deeply serious appeal to the dying traditions of a lost Camelot...Let's dig up a bone to chew. On September 18, 2005, a NY Times editorial started with:
John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week.It's hard to set the ominous thunder roll of the first sentence aside (what were the worst fears of Roberts' critics? Earthquake. Tsunami? A conservative judge on the bench?), but I will do it. The editorial staff of the NY Times took the position that a judge accused of being more conservative than Justice Ginsberg should have to promise the senators that he or she would vote the "correct" way, as determined by the current senators on the Judicial committee. If that's the way things should work, why even bother with a Supreme Court? It would be more efficient to junk it and have the senators on the Judicial Committeee hear a few cases. I'm sure we'd all get a good belly laugh out of their opinions.
If the test were legal skill alone, Mr. Roberts would certainly pass. But the Senate and the American people have a right to know whether he would use his abilities to defend core rights and liberties, or to narrow them.
Over days of testimony, he dodged and weaved around many other critical legal issues. On abortion, church-state separation, gay rights and the right of illegal immigrants' children to attend public school - all currently recognized by the court - he asks to be accepted on faith. That just isn't good enough. The Constitution says that senators must give their "advice and consent" to Supreme Court nominees. To do that in a meaningful way in the case of Mr. Roberts, they need information that has been withheld from them.
The characteristics the Chief Justice of the Supreme Court of the United States is currently showing are the characteristics described by him and and others during the nomination process - humility, a colleague, not an ideologue, deep respect for the judicial process, its integrity and the continuity and workability of the law. In other words, his performance shouldn't be a big surprise, even to the NY Times. And maybe it isn't, because the NY Times did close their editorial opposing the Roberts nomination with the hedge that Roberts might turn out to be a superb Chief Justice - but noted that it was too risky to gamble.
All of this leaves me with the suspicion that absolutely no Bush nominee would be considered a safe bet by the NY Times. Their hypocrisy is only outweighed by their pomposity in writing "a responsible senator might still conclude that he warrants approval". Hah. Not only does the editorial staff of the NY Times not understand judicial independence, apparently it also believes that the senators shouldn't be independent either. I'm sure the senators were deeply relieved to know that the NY Times was allowing them to vote as they saw fit.
Justice Alito is going to prove to be pretty much as he was advertised too - fair, and a superb constitutional technician. I think it is no accident that Justice Alito wrote the opinion in Holmes vs. South Carolina. The Supreme Court wanted to strike the particular ruling (rightly so) while leaving the existing rules intact, and they counted on Alito to do that clearly and authoritatively. It's a nice bit of legal distinction worth a read.
Hat tip to Ann Althouse.