Hey, Senate: Judge Thyself

Senate Judiciary Committee member, Sen. Charles Schumer, D-N.Y. gestures during his time questioning Chief Justice nominee John Roberts during Roberts confirmation hearing before the committee on Capitol Hill, Wednesday, Sept. 14, 2005. (AP Photo/Evan Vucci) AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



"Judges are not politicians," Supreme Court Chief Justice nominee John G. Roberts Jr. told the Senate Judiciary Committee on Monday during his opening remarks. He should have added, while he was at it, that "politicians aren't judges, either."

Yet the politicians and the judge are meeting here this week in a wood-paneled room at the Capitol and the juxtaposition of pure political grandstanding and subtle legal reasoning is as jarring as is the level of hypocrisy and cynicism that wafts through this place like a bad fog.

The Senate has the job of giving its "advice and consent" to the president on his judicial nominees and senators grandly talk all the time about their vital duty to take this job seriously.

Yet when the first chief justice nomination hearing in 19 years came to this gang, they did not come close to rising to the solemn occasion. It is politics as usual — more histrionics than history — and it is a shame.

Leave aside for the moment the fact that Roberts stonewalled on most of the tough questions asked of him by both Democratic and Republican senators. He did so because many of his predecessors had been unforthcoming with legal specifics and yet successful in their quest to get to the Supreme Court.

He did so because it makes great sense for a future chief justice not to tip his hand too much. He did so because his party is in charge of the White House and the committee, and, thus, because he could get away with it.

And he did so with much greater consistency and ardor than most of his recent predecessors.

Roberts did precisely what he had to do, in other words, to maintain his position of relative strength going into the voting part of the nomination process. But the surely does not justify, excuse or explain why so many senators, on both sides of the aisle, were so meek in pushing him to give them, and by extension you and me, a better sense of what the guy is really about.

A half century ago, a young lawyer named Bill Rehnquist chastised the Senate of that era for failing to adequately question a judicial nominee. Use well the power to advise and consent, the future chief justice warned legislators, or you may effectively lose it.

So what happened? By Wednesday, the second day of questioning, many of the committee members had all but given up on asking relevant questions of Roberts; they already were on to their more natural roles: using a special media platform to score their own political points to whatever constituency they happen to be pandering to today.

Some senators used their precious moments in the spotlight to make political statements about abortion rights or civil rights. Others spent time lecturing the nominee about their own views of the role of the judiciary or the president's war powers.

Sen. Edward Kennedy, D-Mass., for example, seemed to want to relive and, perhaps, re-litigate some of the great civil rights wars of the 1960s. His questions seemed completely detached from the context in which they were asked.

Sen. Sam Brownback, R-Kansas, meanwhile, spent five straight minutes laying out an anti-abortion case to Roberts before asking his question — as if Brownback were a lawyer and Roberts the judge. These efforts have nothing to do with trying to glean information from Roberts that would shed light on his views so we can evaluate his qualifications for the job.

They were about taking advantage of the cameras to shill for their own causes or to pay back their core supporters. I know it's logical for a politician to turn all things into politics. But just because it's logical doesn't make it right.

Meanwhile, Sen. Jeff Sessions, R-Ala., to his everlasting disgrace, wasted everyone's time with a moronic dialogue with Roberts about what a trial is and how an appeal occurs. Sen. Tom Coburn, R-Okla., who keeps reminding everyone that he is a medical doctor, actually deigned to interpret Roberts' body language as he answered questions.

  • Sean Alfano

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