Tuesday, September 13, 2005

The Questioning Begins: Initial Impressions

As the questioning of John Roberts begins today, I offer some impressions of the questioning under each Senator. I will keep this at the top of the page for today and may update it at the day goes on.

Senator Spector: Perhaps takes some of the wind from Democratic sails by opening the questioning on abortion, right to privacy, and other hot button issues. Roberts says that he supports a right to privacy, though he seems to have his own take on where it comes from. Though he acknowledges that it arises from the First, Third, Fourth, and Fifth Amendments, he omits any discussion of "penumbral reasoning" that appears in Griswold v. Connecticut. I dispise these penumbras used as justification because of concerns that it opens the door to judicial whimsy, but the framework Roberts discusses sounds like something that a strict constructionist could sign onto with a little more information, as well as one that more liberal senators are going to have a slightly more difficult time opposing. Time will tell.

Senator Leahy: Two things become apparent over the course of this half hour of questioning: John Roberts, until proven otherwise, is the smartest person in the room on the state of the law; and, because of this, the Democratic strategy is probably best typified as "guilt by association." When the discussion is on the finer legal points, Leahy is trying very hard to make his points, but is pretty well outmatched by Roberts. However, to counter this impression when discussion of politics or policy, Leahy is signaling to the other Democrats where to go with questioning, always tying Judge Roberts to the "Reagan Office of White House Counsel," or the "Kenneth Starr Solicitor General's Office." Roberts is not afraid to fire back, though; when asked about a Title IX case where the government (and Roberts as its attorney) argued against the existence of a remedy for a teenage girl who had been sexually harassed by her high school teacher, after Leahy tries to paint the position as a sympathy with the defendant teacher, Roberts sends a salvo of his own by noting that he abhored the teacher's actions, that circuits courts had previously taken the position then articulated by the government, and that the courts had taken that position because Congress had failed to spell out an explicit remedy, leaving the existence of any such remedy completely open to question. Score a point for willingness to throw misgivings about the required outcome back at the body that drafted the law in the first place.

Senator Hatch: Ho hum. Misgivings about overreach by the court. Took exception the Violence Against Women Act, which he sponsored, being struck down. [Look for further updates here.]

Senator Kennedy: The Liberal Lion rears his head. For the first time in this hearing, we hear crosstalk between a senator and Judge Roberts. Kennedy succumbs to giving long-winded speeches that peter out before arriving at a discernable question. Some contention over Kennedy's characterization of Roberts's own words. Kennedy later appears on CNN expressing his regrets that Roberts is not going to toe his line. Surprise, surprise.

Senator Grassley: CNN pre-empted his questioning for the presidential press conference and the Kennedy interview. TiVo is unforgiving like that.

Senator Biden: Jokes going in that he wishes the nominee were someone else, because at least he could then be sure that he "knows as much" as the nominee. It is becoming clear that Biden is serious about running for president; I don't recall Biden playing his own "nice guy" card like he has the last couple of days, all the while asking tough questions. Biden is the first Democratic senator to put on a good offensive. Good grilling, drawing contrasts between the hearings and answers of Ginsberg and Roberts. Questioning turns to Violence Against Women Act. Biden alternately looks in control and flustered. Jeff Greenfield rightly notes that this is the first time that we see Judge Roberts at all "on his heels". Tough round of questioning, if a bit excessively showy.

Senator Kyl: Asks about the propriety of using foreign law as precedent in anazlyzing American constitutional law. Roberts is apparently against this. Roberts also discusses his days clerking for Judge Friendly and Justice Rehnquist.

Senator Kohl: Largely pre-empted by CNN interviews. Some discussion of how Roberts's views have changed over the years.

Senator DeWine: The senator notes that he is the halfway point of the panel. Discussion about oversight of FISA court. Also discussion of the First Amendment, generally, and the role of the court in overturning legislation.

Senator Feinstein: Opens with a litany of supposedly implied misogynistic statements. She's trying to score points where there are none to be had. Now going into some vague questioning on "beginning of life" and "end of life" issues. She fails to score any real points as to the Mission Viejo ("hapless toad") case.

Senator Sessions: Splitting his time due to a floor vote at 4:30.

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