It really galls me that a judicial nominee must submit to the advice and consent of a senate that is populated by people who just are not very bright. I offer two examples from Tuesday's (13 September 2005) proceedings.

Senator Leahy asked Judge Roberts about the disposition of matters if Congress passed a law requiring the removal all U.S. troops from a foreign country, etc. Judge Roberts decline to answer the question on the grounds that it would be improper to declare how he might rule in a case that could come before the court. Senator Leahy: "Isn't this Horn Book law? I don't know of any case on its way to the Supreme Court." Roberts replied that it was at least possible because there were cases which arose during the Vietnam conflict and came before the Court. Now, to give Senator Leahy his due, he did make an important distinction: the cases which came before the court during the Vietnam conflict did not involve a law passed by Congress--over a presidential veto--requiring the removal of troops. But even so, look at Senator Leahy's logic: a case such as he describes is not on its way to the Supreme Court; therefore it would be permissible to Roberts to answer. But Roberts did not say that he declined to answer questions about cases which were on their way to the Court; he declined to answer questions regarding cases which could come before the court. Leahy's logic is this: A has not happened, or is not happening, therefore it will not happen. This is like saying, "I am not presently dying: therefore I will never die--or at least not during your lifetime."

Then there is Senator Joe Biden, who wanted to address the refusal to answer such questions--known as The Ginsberg Rule. He asked Roberts, rhetorically, whether Ginsberg followed her own rule. Well, according to Biden, she did not, because when she was asked if she agreed with a decision made recently by the court (i.e., just before she was nominated) she said she did. So Biden wanted to use Ginsberg's failure--or refusal--to abide by her own rule as some sort of precedent. There are two problems with this attempt by Biden here. First, note Biden's logic: She broke a rule; therefore Roberts should break the same rule. This is the sort of poor logic that teenagers offer their parents: "But Johnny drives without a license!" (And Democrats insist that they are intellectually sharper than Republicans.) Second, as I understood the exchange, Biden wanted Roberts to answer questions about hypothetical cases--cases which had not yet come before the Court. But the question which Justice Ginsberg chose to answer was about a case that had already been decided by the court. So she was not being asked to pre-judge a case. That Biden could not distinguish the two cases indicates to me that he is not qualified to advise or consent with respect to judicial nominees.

Now, my friend Lee, over at Two-Edged Sword, probably has not been very happy. He had hoped that Roberts would answer the Senators' questions. I certainly hope that, upon reflection, Lee will recognize that telling us how he would decide certain cases, in order to get senate confirmation is tantamount to running for office. (Did anyone notice Shumer's exhortations to Roberts, "...if you want to get my vote..."?) And, as Roberts himself put it (in response to Senator Biden's assertion that if senator's did not declare their positions they could not get elected): Judges don't stand for election.

I for one was satisfied by the only real answer Roberts could give on the question of his judicial philosophy. When asked if we would be for the little guy of the big guy, Roberts replied, "If the Constitution says that the little wins, then the little guy wins. If the Constitution says that the big guy wins, then the big guy wins."

Too many questions have focused on Roberts beliefs about matters other than the law and his approach to it. (And asking how he will/would decide specific cases hardly counts.) It makes no difference what he thinks about Civil Rights, any more than it makes a difference what a baseball umpire thinks about the size of the strike zone!