Clever, Not Smart

Here's the opening of Dana Milbank's commentary on the Roberts hearings from this morning's WaPo.
Efforts to get an answer out of John G. Roberts were going nowhere at yesterday's Senate Judiciary Committee meeting, so Sen. Charles E. Schumer went Hollywood. "Your failure to answer questions is confounding me," the New York Democrat fumed at the nominee for chief justice. "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.' Then I ask you if you like 'Casablanca,' and you respond by saying, 'Lots of people like "Casablanca." ' You tell me, 'It's widely settled that "Casablanca" is one of the great movies.' "

As the laughter at his expense subsided, the judge's smile shifted toward a smirk. Chairman Arlen Specter (R-Pa.) moved to call a recess, but Roberts asked if he could reply to Schumer." 'Dr. Zhivago' and 'North by Northwest,' " the nominee deadpanned. The crowd scored it another point for Roberts. Jane Roberts gave her husband a kiss. Schumer went outside to the cameras, where he observed, a bit wistfully, that Roberts "is a very, very smart man."
Milbank's take is typical of the MSM line: We're so above it all, we can see this is all a game, Roberts is great at dodgeball, yadda yadda yadda. But I happened to watch that moment of the hearings, and I saw something totally different.

Schumer was the last person to question Roberts right before the recess, and he seemed to score. The movie analogy was only a funny way of punctuating Schumer's substantive point, which was that Roberts was splitting hairs. Justices on the Court dissent from majority decisions, law professors criticize, you yourself have dissented as a judge and criticized as a lawyer, so why can't you just tell me frankly what you think about a few settled cases? What makes this room a hothouse where suddenly you can't do what you've been doing your whole career? It's a good question, and reading his face, I think Roberts thought Schumer had drawn blood.

Since by the end of his speech Schumer had asked no question, only profferred a rebuke, it seemed Roberts was not going to respond --and indeed he said nothing, so Specter actually did call the recess. You could kind of see gears turning in Roberts' head, though, as he decided he couldn't let Schumer's comments stand. So he asked to speak, and while the joke was good and broke some tension, what really devastated Schumer was his substantive answer.
The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences. The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion. And in my experience, every one of those stages can cause you to change your view.
The view you ask then of me, "Well, what do you think, is it correct or not?" or "How would you come out?" That's not a result of that process. And that's why I shouldn't respond to those types of questions.
Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process. It is not a process under which senators get to say, "I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you." That's not a bargaining process. Judges are not politicians. They cannot promise to do certain things in exchange for votes.
At that, at least to this viewer, Schumer was put in his place and the round went to Roberts. Dr. Zhivago was the least of it; Schumer had questioned Roberts' integrity and Roberts squashed him like a bug.

What I've seen in the commentary from both sides during these hearings suggests to me that no one understands the word "philosophy" anymore. When people say they want to know Roberts' judicial philosophy, they mean they want him to do what he literally can't do --say in advance how he'd rule on a case. You can hate abortion and not be able to overrule Roe if the case presented doesn't revisit the same legal questions as Roe. You can, however, describe your approach and in that deeper sense a judicial philosophy has indeed emerged. I've been really impressed because his answers reveal a person who has more than an encyclopedic knowledge of cases, as many lawyers do; he has clearly given deep thought to the role of the judiciary & its powers --not just at the level of "what is", which is where even the best lawyers tend to stay, but also at the level of what should be. Just one example from yesterday, following a question from Lindsay Graham:
I think one of the things that the chief justice should have as a top priority is to try to bring about a greater degree of coherence and consensus in the opinions of the court. I know that has been -- was a priority of the last chief justice. I actually believe that is something that should be a matter of concern for all of the justices, but as the chief, with responsibility for assigning opinions, I think he has greater scope for authority to exercise in that area and perhaps over time can develop greater persuasive authority to make the point.
And again, coming from the chief it may be a point that other justices would receive-- be more receptive to than they might coming from one of their colleagues; that we're not benefited by having six different opinions in a case; that we do need to take a step and think whether or not we really do feel strongly about a point in which a justice is writing a separate concurrence which only he or she is joining, or whether the majority opinion could be revised in a way that wouldn't affect anyone's commitment to the judicial oath to decide the cases as they see fit, but would allow more justices to join the majority so the court speaks as a court. That is something that the priority should be, to speak as a court.
That's not a throw-away line about being a uniter, not a divider. Roberts has seen that when justices feel free to be dilettantes, they erode respect for the law. I'm sure he was thinking about decisions like Casey where there is no majority opinion. The rule of law becomes: whatever. Here's a link to all the transcripts, by the way.