From the Roberts confirmation hearings (transcript mine):
Feinstein: If you were in that situation, with someone you deeply love, and you saw the suffering, who would you want to listen to: your doctor, or the government telling you what to do? To me it's that stark, because I've been through it.This, from a woman who wants to nationalize (i.e. bureaucratize) the US healthcare system. (Note: I'm setting aside the fact that her entire line of questioning focused around how Roberts thinks things should be, instead of how the law and the Constitution demand they must be. For more on that, see Ann Althouse for more on that.) So, when it comes to killing a patient, she doesn't want the goverment involved—but at every step leading up to that point she does? What sense does that make?
And Dahlia Lithwick comments:
It's like a bad method-acting class—pretend your puppy's dead, judge, we'll need some tears here.Next, we hear a uniquely absurd line of reasoning roundly defeated by a superior rationality:
Feingold: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.Basically, if Roberts "upholds" a decision in his testimony, it can have a chilling effect on anyone who might one day aim to challenge that decision; if he "overturns" one, it could prompt excessive challenges to that decision. And, beyond that, there's no guarantee that, after the process of discussing and researching the applicable precedents, Roberts will stick to what he feels is the right application of the law right now. Can you imagine the ramifications on the public's faith in the court (really the only thing that gives its decisions any weight) if they thought it was headed by some wishy-washy guy who can't make up his mind about anything? Can you imagine the impression that would give people regarding the law?
But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions.
So your answer that you would apply that principle doesn't help me very much in understanding your view of this. We know where all eight other members of the court stand on these opinions -- in their opinions. They either wrote or joined one of them.
Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.
Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.
But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.
So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?
Roberts: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.
They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.
You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.
The process of the opinion-writing -- you can't -- the opinion turns out it (inaudible) you have to change the result. The discipline of writing helps lead you to the right result.
You're asking me for my views, you know, right here without going through any of that process.
Feingold: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?
Roberts: Well, the harm would be affecting the appearance of impartiality in the administration of justice. People who would be arguing in that future case should not look at me and say, "Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to."
They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.
I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices -- every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.
What we don't need is more people convinced that the law means whatever you want it to mean—that's how we got into this mess in the first place. Of course, I can see why someone like Feinstein or Feingold would want that. Sigh.
Beldar Blog points out another serious flaw in Feingold's line of questioning:
Mr. FEINGOLD: I demand that you immediately violate the absolutely clear, unconditional prohibition in section 3A(6) of the Code of Conduct for United States Judges by commenting here on the merits of actual, specific cases and motions that are still pending before you as a judge.I'd say "heh," but the fact that it's so accurate, and that this crap is going on within supposedly the most deliberative body in the world depresses me too much.
Judge ROBERTS: I can't. That would be unethical.
Mr. FEINGOLD: But I wrote you a letter telling you in advance that I was going to demand that you be unethical. So c'mon, now, be unethical! Chop-chop! Break the most basic rules designed to promote judicial impartiality and public confidence in the judiciary, right here for C-SPAN's cameras!
Judge ROBERTS: No, sir, I won't.
Mr. FEINGOLD: In the name of my most loudly barking moonbat constituents and contributors, I order you to trash your ethics! Regardless of my smarmy façade of mock-respect, I'm going to persist in asking these questions that, if you did answer them, would demonstrate beyond any doubt that you're unfit to be any kind of judge anywhere.
Judge ROBERTS: With due respect, no.
Mr. FEINGOLD: I'm hugely surprised and disappointed that you won't comply with my demand that you commit an offense which would immediately and appropriately prompt the U.S. Judicial Conference to sanction you, and probably prompt us here in the United States Senate to convene a hearing to impeach and remove you from your present office. But I'll move on (continuing to speak incredibly swiftly, because I want to squeeze in the largest number of similarly chickensh*t argumentative questions that will possibly fit in between my smirks for the camera).(Links in original)
(Special thanks to Charlie Quidnunc and his Rip & Read podcast—shows 143 and 144—for the inspiration for this post, as well as the ability to listen to significant portions of the hearings while on the train home.)