Roberts Hits a Grand Slam

At the start of the Senate Judiciary Committee hearings yesterday on the nomination of Judge John Roberts for chief justice of the Supreme Court, Roberts introduced his wife, Jane, and their two children — Josie, 5, and “Dancing” Jack, 4. Senators smiled at them like proud grandparents. (LA Times)

For several hours Senators preened and blathered while Roberts smiled, taking nary a note and looking, well, judicial. Finally the next Chief had his chance to speak. He looked directly at the committee and spoke eloquently for several minutes. The highlight for me:

Judges are like umpires. Umpires don't make the rules; they apply them. Nobody ever went to a ballgame to see the umpire.

Judge Roberts said that he aspired to a humble and limited role as leader of the Supreme Court, more akin to an umpire who calls the balls and strikes rather than the star player who is the center of attention. He vowed he would be a fair umpire and he used the baseball analogy to convey his view that the nation's highest court should play a more modest role in American government.

The little speech was a grand slam!

Today the questioning began with each Senator limited to 30 minutes. Being Senators they continued to preen and blather while Roberts continued to look judicial. When he finally got the chance to answer the five-minute-long questions Roberts hit the long ball every time. The entire transcript is published here.

The Democrats on the committee were clearly overmatched by Judge Roberts who could take them all on with half his brain tied behind his back. (thanks, Rush). And Roberts had a very good number two hitter in Arizona Senator John Kyl.

Following are excerpts from Kyl’s diary of the confirmation hearing.

KYL: The Democratic comments indicated that one of their key themes will be to applaud the policy "gains" of the past (court decisions) and seek Roberts' commitment not to "turn back the clock" on this progress. By gains they mean both legislation (like civil rights laws) and numerous court decisions (example: on "privacy rights" to support, among other things, abortion rights).

Sen. Diane Feinstein was especially concerned that Roberts not interpret the Constitution's Commerce Clause so narrowly as to prohibit robust federal government action. Another one of my Democratic colleagues asked: Will the nominee expand or contract freedom?

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. 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?

In 1975, the court issued an important decision giving public school students the right to a hearing before they're suspended for disciplinary reasons. 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.

In 2003, the Supreme Court issued a decision that effectively prevents the government from outlawing child pornography if that pornography is made with computer-generated images of children. The effect of these decisions is that a whole class of child pornography effectively can't be prohibited. A world where these types of crimes occur with frequency is a world where parents are constantly afraid for their children, afraid to let them play outside alone, to go outside of their sight, even afraid to let them go on the Internet.

And I don't see this as an advance of freedom.

ROBERTS: Well, Senator, judges and justices do have a side in these disputes. They need to be on the side of the Constitution. And, in most of the areas, what the Constitution provides is that these sorts of policy debates -- which approach is better suited to promote freedom or to promote progress -- are vested in the legislative branch.

Your humble blogger is looking forward to the resumption of the hearings tomorrow. Unfortunately for the Dems, they have to field the same team.