Bad Theater

By September 14, 2005Judicial Nominations

Judicial NominationsDid an interview on Bloomberg Radio last night about the Roberts hearings. They asked, “Isn’t it all theater?” If so, we’d have to say it’s really bad theater.

We had the blather on in the background while working yesterday. Mighty CNN could not hide its partisan bent: they cut away during Sent. Mike DeWine’s (R-OH) questioning, hurried back to catch all of Dianne Feinstein’s (D-CA) — a disproportionate part of which was on abortion, uh….er….”privacy” — and then cut away from Sen. Jeff Sessions (R-AL), with a dismissal from Wolf, noting curtly that Sen. Sessions was only “going on and on in his praise, as expected…” Apparently, “privacy” questions are fair game, praise is palaver.

Feinstein began by grilling him about his now-famous memo to Fred Fielding, White House Counsel, joking about the surplus of lawyers. In it, Roberts noted tongue-in-cheek, “Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide.” A humorless Feinstein just didn’t get it, and said “I don’t want to belabor this” to the point of, well, belaboring it.

Still, for us, the defining moment came in the Feinstein-Roberts exchange when she asked about a particular case, “Let me ask it another way. Do you believe that the courts should have a limited role in that situation?”
Roberts eyed the pitch coming slowly across the center of the plate and swung: “I think courts have a limited role in general, and that is that they only interpret the law. They don’t make the law.” Then he added, “The shaping of public policy should be left to the legislators.” Bam! Over the center field wall.

We have said from the outset that we want a judge who will interpret the law, and not be an adventurer into interesting legal theories of their own making. We think Judge Roberts is that kind of judge, will be that kind of Chief Justice. We have also pointed out that 80% of a federal judge’s civil caseload (slightly lower for the Supreme Court) consists of issues like torts, contracts, employment law and regulatory matters, issues which receive very short shrift in these hearings. Maybe folks should put aside issues of “privacy” and talk about the issues on which he will spend the vast majority of his time a Chief Justice. Let him whack those questions over the fence like a home run derby.

Problem is, those issues aren’t nearly as divisive. Just doesn’t make for good theater.