Schumer v Roberts

Charles Schumer is my hero. I’m starting to think that he may be one of the most intelligent and articulate senators that we have.

Sorry for the length of the following transcript excerpt; I couldn’t resist. From yesterday’s confirmation hearings :

SCHUMER: [L]et me ask you this about judges in general. You sit on a court, correct?


SCHUMER: OK. And sometimes you dissent. And that’s routine, not just for you but for every judge…

SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?

Let’s go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?


SCHUMER: In speeches, law review articles, it’s a healthy process, wouldn’t you say?

ROBERTS: I agree with that. Yes.

SCHUMER: And you did this occasionally when you were in private practice?


SCHUMER: OK. Nothing unseemingly about that?


SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That’s what they do for a living.

And that’s part of being a good lawyer.

And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?

ROBERTS: On occasion, yes.

SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, “Roe was wrongly decided and should be overturned,” unquote. Right?


SCHUMER: OK. But in this hearing room, you don’t want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can’t talk about decided cases — past cases, not future cases — when you’ve been nominated to the most important job in the federal judiciary.

You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you’ve done it until very recently. You could probably do it before you just walked into this hearing room.

And if you’re confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room — when it is more important than at any other time that the American people, and we the senators, understand your views.

…[Y]our failure to answer questions is confounding me. You’ve done it in instance after instance after instance after instance.

What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?

SCHUMER: Let me just say, sir, in all due respect — and I respect your intelligence and your career and your family — this process is getting a little more absurd the further we move.

You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don’t get any answers.

It’s as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, “I like movies with good acting. I like movies with good directing. I like movies with good cinematography.”

And I ask you, “No, give me an example of a good movie.” You don’t name one. I say, “Give me an example of a bad movie.” You won’t name one. Then I ask you if you like “Casablanca,” and you respond by saying, “Lots of people like ‘Casablanca.'”


I don’t have any strong opinions about Roberts, and I don’t know if he’s conservative or Ultra Super-Duper Conservative. And since this confirmation process seems to add just about nothing to our knowledge of Roberts, none of us (except Roberts) will know until he’s been on the court for a while…