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Hey, Senate: Judge Thyself

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.


Guess what the loopy junior senator from Oklahoma concluded from his across-the-crowded-room gaze? Yup, Roberts would make a fine chief justice. I'm surprised that Senate Majority Leader Bill Frist, R-Tenn., didn't come into the Hart Senate office building and declare that he had diagnosed Roberts as fit to serve based upon his viewing of the proceedings on C-SPAN.

It certainly wasn't the sort of focused, tight give-and-take that Roberts, a sitting federal appeals court judge, is used to from or on the bench. When Roberts was an appellate litigator, arguing cases before judges, he no doubt became accustomed to getting to the point succinctly because judges would not let it be otherwise.

And now that he is a judge he no doubt pushes attorneys before him to answer questions squarely and quickly. But the hearing clearly hasn't felt like a trial or other legal proceeding even though the nation's top legal job is on the line.

No, it's a political matter in a political forum and such discourse on Capitol Hill has little of the decorum, intensity and focus that legal discourse has in a court of law. That difference inured greatly this week to the benefit of Roberts and his supporters, but it detracted greatly from the sense that the committee had noble purposes or the ability to achieve competent effect as it tried to fulfill its constitutional role in the nomination process.

Indeed, it's rather frightening to think that the only 18 people in the world who get to question Roberts under oath could do only as well in tone and substance as these dozen-and-a-half legislators did.

Committee members should have pressed ahead with their questions even after it had become clear that Roberts would not give in with his plan to say nothing. Some did. Sen. Dianne Feinstein, D-Calif., for example, eschewed the stump speech and pressed ahead with questions. So did Sen. Mike DeWine, R-Ohio, and for the most part, Sen. Herb Kohl, D-Wis.

These folks did fulfill their constitutional role to its fullest and the late chief justice likely would have been proud of them. In politics, as in life, it is courageous sometimes to push the rock up the hill even when you know it's going to come tumbling down again.

But too many Senators did not. Sen. Orrin Hatch, R-Utah, for example, was so sappy and effusive with his praise for the nominee during one point in the questioning that I thought he was going to leap out of his chair Wednesday and ask Roberts for a big hug.

Instead of asking more of his own questions, Sen. Jon Kyl, R-Ariz., spent a great deal of time Wednesday defending Roberts from questions raised by Sen. Joe Biden, D-Del. Sen. John Cornyn, R-Texas, spent time asking Roberts why Supreme Court decisions aren't more often written so that lay people can understand them.

And Sen. Brownback, during his second round of questions, instead of questioning Roberts in depth and at length, again mostly lectured the nominee about a variety of hot-button political issues. If I wanted to know where one senator or another stood on the issues, I would go to their Web sites.

Instead, I wanted to know more about where the nominee stands on the issues. The committee, for the most part, didn't help me.

One of the main topics of this and every nomination hearing is the role of judges in evaluating congressional legislation. The legislators, not surprisingly, "take umbrage," as committee Chairman Arlen Specter put it Wednesday, when federal judges overturn their legislation.

But after seeing Roberts this week, and seeing the haphazard, politically-expedient way in which he has been questioned during this vital week of interaction between the branches, it's no great mystery anymore why the Supreme Court so frequently has to clean up the messes Congress makes. It's no wonder why our laws are so unartfully written.

And it's no wonder why so many of us keep looking in vain to true political leadership and courage and keep coming up short in our search.

Forgive me, it's my first Supreme Court nomination hearing. But it seemed sadly and sickeningly played like a game by too many of the senators upon whom I had trusted to ensure that the process would genuinely rise above the shabby politics of the modern age.

If there is, indeed, contempt on the part of judges for their colleagues in Congress then it is because of episodes like this, when the Senate offers clear and convincing evidence that it is worthy of it.

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