The law and the jungle

Not much to say about Day 3 of the Roberts hearing. His confirmation is seen as such a sure thing that Democrats seem to have lost heart and Republicans are asking even easier questions, if that is possible.

Here are the highlights of Day 2 of the Roberts confirmation hearings yesterday. Note how many different ways various senators try to get the nominee to give a hint on how he might vote on certain issues that might come before the court. A nominee can't answer such questions because that would mean he couldn't hear cases with an open mind. So, senators are trying to get Roberts to violate one of the most sacred judicial tenets.

Finally, a good question for John Roberts, from Wisconsin Sen. Russell Feingold: Would you give serious consideration to televising the public portions of arguments before the Supreme Court? Great idea. Roberts says he would bring it up to the whole court. Sounnds like an evasion to me.

They're taking a break in the Judiciary Committee, and Edward Kennedy is being interviewed on Court TV, saying that what both Democrats and Republicans want is a justice who is in "the mainstream." In the first place, that's utter nonsense. Each side wants someone who will do with the court what that side thinks should be done with the court. And in the second place, exactly what is the "mainstream"? Prevailing legal opinion? What a majority of Americans think? What does any of that have to do with constitutional interpretation?

You certainly have to give Democrats on the Senate Judiciary Committee credit for keeping the focus on their agenda, no matter what John Roberts says. Under questioning from Sen. Kyl of Arizona, Roberts said it was not the court's job to choose sides in pursuit of some vision of "progress" or "liberty." The Constitution envisions that those goals will be met when people and their representatives duke it out in the legislative process. That was followed almost immediately with a question from Sen.

Sen. Joe Biden just tried unsuccessfully to browbeat John Roberts over Title IX interpretation. The exchange is a good illustration of Roberts' continued insistence (correctly) on a narrow view of a judge's role and the senators' attempts (misguided) to figure out what Roberts believes now or once believed about certain issues.

John Roberts showed a perfect understanding of the proper role of the judiciary during his confirmation hearing opening statement:

The appellate judge likened jurists to baseball umpires, saying that "they make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire."

Our favorite ex-Hoosier lawyer Little Johnny Roberts begins his Senate gauntlet today. Here's some of the legal jargon to listen for, and three things to watch for. Should Roberts get more scrutiny because he is being nominated for chief justice?

MAY be charged? How can you forget about your 5-month-old for two hours?

Arnold Schwarzenegger said an odd thing as he vowed to veto the bill that would make California the first state to recognize gay marriage by legislative action:

The Republican governor had indicated in previous statements that he would veto the bill, saying the debate over same-sex marriage should be decided by voters or the courts.