"Grassley... falls into a familiar, misleading pattern, conflating the credibility of the informant with the credibility about the allegations."

"I trust my wife, but if she tells me that our 6-year-old claims to have seen a dragon on the roof, I don’t suddenly believe that there was a dragon on the roof...."

Writes Philip Bump in "Trump wanted Ukraine to impugn Biden. D.C. Republicans finally delivered. Why did Sen. Charles E. Grassley (R-Iowa) choose now to release the unverified allegation against Biden that he’s possessed all along?" (WaPo). 

"But while the risk of life-threatening diseases, dementia and death rises faster with each passing decade of a person’s life, experts in geriatrics say..."

"... that people in their 80s who are active, engaged and have a sense of purpose can remain productive and healthy — and that wisdom and experience are important factors to consider.... It is true that older people tend to decline physically, and the brain also undergoes changes. But in people who are active, experts say, the brain continues to evolve and some brain functions can even improve — a phenomenon experts call the 'neuroplasticity of aging.'... Mr. Biden did not undergo cognitive screening during his last physical, and experts are divided about its necessity for older adults.... Senator Dianne Feinstein, Democrat of California, is obviously diminished at 89; she struggles to recall the names of colleagues and what happened in meetings. Senator Charles E. Grassley, Republican of Iowa, just won re-election at 89; he will be 95 if he finishes his term. Mr. Grassley is fond of tweeting videos of his early morning runs and sometimes does push-ups at public campaign events."

From "President Biden Is Turning 80. Experts Say Age Is More Than a Number. The New York Times spoke to 10 experts in aging to paint a picture of what the next six years might look like for a person of the president’s age" (NYT).

ppl ask me why i run 6 days a wk at 4AM pic.twitter.com/30NaTuMzpO

— Chuck Grassley (@ChuckGrassley) August 14, 2022

"Sen. Grassley presses FBI on false testimony during Justice Kavanaugh confirmation."

Writes Sharyl Attkisson (with the full text of Grassley's letter).

"Some farmers are injecting pregnant sows to cause abortions. Others are forced to euthanize their animals..."

"... often by gassing or shooting them. It’s gotten bad enough that Senator Chuck Grassley, an Iowa Republican, has asked the Trump administration to provide mental health resources to hog farmers. Despite this grisly reality — and the widely reported effects of the factory-farm industry on America’s lands, communities, animals and human health long before this pandemic hit — only around half of Americans say they are trying to reduce their meat consumption. Meat is embedded in our culture and personal histories in ways that matter too much, from the Thanksgiving turkey to the ballpark hot dog. Meat comes with uniquely wonderful smells and tastes, with satisfactions that can almost feel like home itself. And what, if not the feeling of home, is essential? And yet, an increasing number of people sense the inevitability of impending change....  One of the unexpected side effects of these months of sheltering in place is that it’s hard not to think about the things that are essential to who we are.... We cannot protect against pandemics while continuing to eat meat regularly. Much attention has been paid to wet markets, but factory farms, specifically poultry farms, are a more important breeding ground for pandemics. Further, the C.D.C. reports that three out of four new or emerging infectious diseases are zoonotic — the result of our broken relationship with animals.... As in a dream where our homes have rooms unknown to our waking selves, we can sense there is a better way of eating, a life closer to our values."

Writes the acclaimed novelist Jonathan Safran Foer in "The End of Meat Is Here/If you care about the working poor, about racial justice, and about climate change, you have to stop eating animals" (NYT). He also does non-fiction with "Eating Animals" (2009) and "We Are the Weather: Saving the Planet Begins at Breakfast" (2019). From his Wikipedia article:

Foer was a "flamboyant" and sensitive child who, at the age of 8, was injured in a classroom chemical accident that resulted in "something like a nervous breakdown drawn out over about three years," during which "he wanted nothing, except to be outside his own skin."... He has been an occasional vegetarian since the age of 10... In his childhood, teen, and college years, he called himself vegetarian but still often ate meat....

I thought that meat-as-home image was interesting. Meat almost feels like home, but you know those dreams where you find other rooms in your house? In your home that smells of meat, there's another room, and it has no meat in it, you've seen it in your dreams, and you can find it in real life. Or something. It's a bit cornball, and the references to "home" are at the beginning and the end — much farther apart in the actual article that in my snippet above — so it would be easy to miss.

Something else that caught my eye: At one point, he says: "These are not my or anyone’s opinions, despite a tendency to publish this information in opinion sections. And the answers to the most common responses raised by any serious questioning of animal agriculture aren’t opinions." There's something dictatorial in that: This isn't opinion, this is truth. Ironically, that makes him sound more opinionated. It yells: I am a polemicist, an ideologue.

I can appreciate a good polemic, and Foer seems to be striving to be a first-rate polemicist. I suspect that his great success as a novelist makes him think that if he does polemics he'll trounce the other writers. This didn't work on me, though. Who exactly is supposed to be horrified by pigs getting abortions and euthanasia? People who support abortions and euthanasia for human beings? People who accept that pigs are raised for slaughter, want to eat meat, but are morally opposed to abortions and euthanasia for human beings? If it's just people who feel sorry for the farmers who won't make the money they'd planned to make from their hogs because of the pandemic, that has nothing to do with the inevitability of an impending transition to vegetarianism.

AND: Senator Grassley has been advocating for mental health resources for farmers since long before the current pandemic. See "Grassley Signs Onto Bipartisan Ernst Legislation to Provide Mental Health Support to Agricultural Communities" (press release from Grassley, May 24, 2018)("("[O]ur farmers and agricultural workers experience disproportionately high levels of suicide... 'We must do more to ensure those who work tirelessly from sunrise to sundown to feed and fuel our world have access to the mental health resources and supports they need'")).

"The FBI was warned sections of the controversial Steele dossier could have been part of a 'Russian disinformation campaign to denigrate U.S. foreign relations'..."

"... according to newly declassified footnotes from a government watchdog report. The December report by Justice Department Inspector General Michael Horowitz examined the FBI's investigation into alleged coordination between the Trump campaign and Russia as well as the FBI's four surveillance warrants for former Trump campaign aide Carter Page.... Several footnotes in Horowitz's report were redacted, and Republican Senators Chuck Grassley and Ron Johnson pushed for the declassification of four footnotes related to the Steele dossier... Footnote 350 in the IG report addresses the FBI's knowledge of Russian contacts with Steele and the potential for disinformation. Steele had 'frequent contacts with representatives for multiple Russian oligarchs, we identified reporting the Crossfire Hurricane team received from (redacted) indicating the potential for Russian disinformation influencing Steele's election reporting.'..."

Writes Catherine Herridge at CBS News.

Let's watch the Kavanaugh hearing.

1. It's about to start. I'll update this post as we go.

2. Dr. Christine Blasey Ford has taken her seat. She's nervously looking around, getting patted on the back. She's wearing a dark blue jacket over a dark blue top and has her hair done in a way that allows it to fall over her face and to need to be pushed back. Senator Grassley begins by apologizing to both Blasey and Kavanaugh for the incivility to which both have been subjected. He says he intends to preserve civility in the hearing and to make it "comfortable" for both witnesses.

3. Grassley criticizes Democrats for sitting on the allegations, allowing them to leak out belatedly, and failing to resolve matters in a bipartisan way. Democrats, he says, are to blame for the pain that "Dr. Ford" has suffered in recent days. He praises himself for doing he could to accommodate her. (I put "Dr. Ford" in quotes to indicate that's what she is being called here. I had switched to calling her "Blasey" after reading in the NYT that she preferred that name. From here on, I'll write "Dr. Ford" without quotes.)

4. Dianne Feinstein: "She wanted it confidential, and I held it confidential, up to a point..."

5. Feinstein casts an aspersion on Grassley: He didn't introduce Dr. Ford. Grassley, angered, interrupts to say that he didn't forget to introduce her. He was going to introduce her at the point when he was inviting her to begin speaking.

6. Still waiting for Feinstein to finish reading her intro statement. Dr. Ford seems to be struggling to keep her composure. After Feinstein, I presume we will hear Dr. Ford read this statement, already released to the press.

7. "I am here today not because I want to be. I am terrified...." she begins, in a creaky voice.

8. Sorry, but I got an hour and a half behind. Will resume.

9. Now, I've watched the entire opening statement by Dr. Ford. She seemed very credible to me. Though she was reading, she seemed to be reliving a real, traumatic experience. It's hard to imagine that she could be infusing her speech with that kind of emotion phonily. Even an excellent actress would have difficulty affecting that kind of emotion.

10.  Rachel Mitchell, the prosecutor brought in to ask questions for the Senators, receives 5 minutes of time from Senator Grassley. Mitchell's use of the time is awkward, because she begin with documents that Ford must read and comment on, and Ford takes her time and makes small corrections to the documents. Grassley interrupts to say his time is up, and shifts the proceedings forward to the next Senator, Dianne Feinstein,

11. Feinstein takes her turn and focuses on the difficulties Ford experienced as her name became known. This material bolsters Ford's credibility, especially to the extent that it seems that Ford knew how painful this exposure would be before she decided to go public. Feinstein's time runs out quickly and Mitchell gets another 5 minutes to continue where she left off.

12. Mitchell's approach enables Ford, just by being careful, to slow everything down. The time will run out. The day will end. Maybe Kavanaugh supporters wanted it to play out like that, but Ford is a credible person, and I think the Republicans chosen approach, including the use of Mitchell, will backfire on them, and Kavanaugh will not be confirmed. I'm saying this at 11:06 ET in my recording, that is, an hour before I'm writing this update.

13. At 11:13 ET, Ford speaks of the "indelible" memory of Kavanaugh and Judge laughing — "having fun at my expense." "I was underneath one of them, while the 2 laughed, 2 friends having a really good time with one another."

14. At 11:56 ET, during the questioning by Senator Whitehouse, I exclaim aloud: "The Democrats are winning by a lot here." Whitehouse is talking about the lack of an investigation.

15. Grassley gets angry and yells — about why there is no new investigation — but it feels so wrong that he's yelling in the presence of Dr. Ford. She's the allegedly traumatized victim — don't yell around her! The Republicans are either too bland — operating through Mitchell — or irksomely angry — through Grassley. Do they know how badly they are losing right now? I wonder how Brett Kavanaugh is doing.

16. I'm skipping ahead, looking to see if Kavanaugh's testimony has begun. It has not. I talk with Meade for a while about what Kavanaugh might say if he were asked if he is 100% certain that Ford is wrong when she says she's 100% certain that Brett Kavanaugh did what she remembers. Here's what I imagined Kavanaugh saying: I cannot be 100% certain. I know that I drank far too much on some occasions when I was an immature teenager, and though I've said that I don't remember ever suffering alcohol-induced amnesia, I cannot know for an absolute certainty that it never happened. Watching Dr. Ford testify has been a horrific experience for me. What if there is a blank, dark spot in my memory where drunken young Brett Kavanaugh did what Dr. Ford describes? I pray to God that's not true, but I cannot say 100% that it's not true, and if it is, I am so terribly sorry. I beg Dr. Ford's forgiveness. I hope for God's forgiveness. I hope that my life's work as a sober adult makes up for what I may have done all those years ago. I still believe I have devoted and useful service to give to my country, and I humbly submit myself to your vote, Senators. And I thank all of you for considering my case, and I want Dr. Ford to know that my heart goes out to her, and my heart goes out to every victim of sexual assault. Thank you.

17. I picture Trump watching the hearings with Ivanka. Somehow I imagine Ivanka reacting like me. I wonder what they are saying to each other. Remember that Trump said at his press conference yesterday that he would watch and judge Dr. Ford for himself, that he had an open mind about it, and he could "believe anything."

18. I've been listening to Kavanaugh for a long time without stopping to write anything. Let me quickly say that I'm finding his opening statement extremely powerful and persuasive.

19. It was a long day! Let me try to wrap up this post. I thought Kavanaugh did really well in his written statement, expressing strong outrage and real emotion. In the questioning, this demeanor sometimes felt too strong. He interrupted and shouted back and seemed to show some hate and contempt for some of the Senators. He said more than once that his family had been "destroyed," and yet his wife is his "rock." The rock is not destroyed.

20. This was the ultimate he said/she said. Both were tremendously strong and they told diametrically opposed stories. If I had to decide, I would not go by who's more likely to be telling the truth, but how everything we've heard weighs on the question whether or not to confirm. In view of everything we know about Kavanaugh, does he deserve confirmation even with the degree of doubt we have about something terrible he might have done when he was 17 (and a couple of other, much weaker allegations)? I suspect most people will end up in the same position they had on him anyway, because it's a matter of weighing. But when I think about how BK and CBF could be so far apart, I have 3 explanations: 1. BK has some alcohol blackout holes in his memory, and what CBF remembers is in one of them, 2. CBF has a false memory and really believes it (caused by some genuine trauma), 3. BK has no route but forward, and he knows he did it, but feels entitled to what he's worked all his life to attain. Since there's no way back to his old life, he must force his way through this obstacle. And he's barreling ahead to save his life and save his family. Cornered, he had to fight like hell, and that includes lying.

"It’s not my normal approach to b indecisive," tweeted the 85-year-old Charles E. Grassley, chair of the Senate Judiciary Committee...

... letting the Supreme Court nominee Brett Kavanaugh know about the latest deadline extension accorded to Kavanaugh's accuser Christine Blasey Ford.

The newest deadline is 2:30 PM today (Saturday). I'm told — reading the NYT — that they're working on negotiating the terms, but it's hard to believe this "tango" — NYT's word — is really over terms:

Throughout the day on Friday, Dr. Blasey’s lawyers and Senate Judiciary Committee aides tried to work out details like how many photographers and television cameras would be in the room (Dr. Blasey, fearful of being mobbed by the news media, wanted one of each); who would ask the questions (Republicans wanted an outside lawyer, Dr. Blasey favored senators); and what day the session would take place (Dr. Blasey asked for Thursday, Republicans wanted Wednesday).

If Blasey really wanted to testify, I think these terms would easily have been worked out. I suspect this last moving of the deadline is simply because they already know there will be no additional hearing, and the vote can't be until Monday anyway, so why not make even more of a show of being caring, considerate, and accommodating to Blasey? In this view, Grassley isn't really "b-ing" indecisive, nor is he really addressing Kavanaugh. It's a show for us, the sensitive people, and Grassley already knows the outcome of this story — that there will be no hearing and Kavanaugh will be confirmed.

In a follow-up tweet sent after the one directed to Judge Kavanaugh, Mr. Grassley wrote: “With all the extensions we give Dr Ford to decide if she still wants to testify to the Senate I feel like I’m playing 2nd trombone in the judiciary orchestra and Schumer is the conductor.” He was referring to Senator Chuck Schumer of New York, the Democratic leader.

Schumer is making him do it. I understand teenagers getting pushed around but the man is 85 years old. Grow up, already, or retire. Is he suffering from learned helplessness? I suspect he's simply posing as a man who gets pushed around by a stronger man. Maybe he thinks the American public is so sympathetic to victims these days that he'll get some.

Notice the use of phallic symbol metaphor: Schumer wields his powerful conductor's baton and he's stuck with a stupid old trombone.

A trombone is a well-known phallic symbol, so don't try to tell me otherwise. The motion of playing it is typically compared to male masturbation. Commenting on Prince's phallic display of his guitar at the Super Bowl in 2007, Rolling Stone magazine contributing editor Gavin Edwards said: "Those trombones are phallic, too. What are you going to do?"

There's even more commentary on the conductor's baton as a phallic symbol. Example (click to enlarge and clarify):

Observations from the Kavanaugh hearings.

1. I'm watching the Senate Judiciary Committee hearings on the nomination today, now that they've moved beyond the introductory orations, and I'll make some notes here, using a numbered list, updated throughout the day. I'm using a DVR, so I'm behind real time, and the updates will come as I get to things in my recording, but just as the people in the gallery are — under Senator Grassley's rule — free to shout out whatever they want at any time, you can talk about what you like in the comments. I mean, you can talk about anything in the hearings. The people in Grassley's domain might be yelling about anything. I can't make out the words. I've tried. Was someone shouting "Death is death"? I don't know!

2. Grassley, the Committee chair, seems to have made a decision — in consultation with whom, I don't know — to allow the protests to interrupt the Senators and the nominee willy nilly. Grassley is  not terribly articulate, but he mumbled something about "free speech" and the ability of 300 million Americans to make our own judgment. I interpreted this to mean that he (presumably in consultation with others) has decided that the disruption hurts the anti-Kavanaugh side. Kavanaugh either actively agrees or understands the game, and he's showing patience and fortitude and an ability to maintain focus as he gets right back, in the same calm voice, to whatever point he was in the middle of making. The protesters probably think they represent society's victims, but they sound like nothing but noise, and they're making the serene and diligent Kavanaugh seem like the victim of crude disrespect.

3. Kavanaugh has a little booklet-sized copy of the Constitution, and he's got the effective stage business of holding it up when he says "Constitution." We can see how small it is. It does not partake of the prolixity of a legal code, we constitutional scholars know very well. So he demonstrates his dedication to the document, but also — for those who can see it — demonstrates that everything he contends is in there can't possibly be there except as a high level abstraction, leaving the specific details for most things to be discovered elsewhere. Attesting to his dedication to precedent, Kavanaugh held up the Constitution and said it's rooted in Article III, where the words are "judicial power." The judge still must figure out what the judicial power is, and Kavanaugh was soon enough off onto what's in Federalist 78, but why Federal 78 and not something else? He has his favorite sources, and those sources require interpretation too. Once you find the judges are required to follow precedent, you still have to figure out how far. Kavanaugh keeps bringing up Brown v. Board of Education, but not in the context of precedent, and Brown v. Board of Education went against precedent. This is all first-week-of-Conlaw1 stuff, and of course, Kavanaugh knows it. He's got to simplify to talk to the Senators and to the American people, and it's sophisticated not to get too sophisticated.

4. Kavanaugh says that in all of the roles he undertakes, he looks at how the people who have gone before him have done their work. As a judge he is following the case law, and now, as he sits before this committee, he's following what he calls the "nominee precedent." He's read the old transcripts of hearings, and he's using the precedent, notably the precedent of the very influential Ruth Bader Ginsburg performance of the nominee role. What does it mean to "follow" those who have gone before? Obviously, he follows them in the literal sense of chronology. But he's not bound to do the same. Presumably, he'll use what works well and avoid what he can see with hindsight does not. Maybe someone will ask him if his adherence to judicial precedent is analogous. In "nominee precedent," you're following Ginsburg and not Bork. Aren't you picking and choosing, based on what's pragmatic? There's no authority that binds. Bork's Senate performance is like Plessy v. Ferguson. It's bad. You're using your human judgment and power to see that it's bad, and that's how you follow it.

5. One reason Kavanaugh, like Ginsburg, won't talk about how he will decide cases is that he puts great value on judicial independence. He wants litigants coming before him to feel that he has an open mind, and that the one with the better legal argument wins. If he'd talked about the subject to the Judiciary Committee, he'd feel morally bound to the Senators, and then he wouldn't be a proper judge, but a "delegate of the Judiciary Committee." Saying that, he was implicitly telling the Senators that they are violating the Constitution if they try to nail him down about anything.

6. This only gets me to the end of Grassley's questioning (and he reserved some of his time). You see why I can't really live-blog this thing or even delay-blog it completely. There's too much. Not sure how much of this I can do. Feel free to encourage me.

7. Dianne Feinstein endeavored to be gracious, but her patience wore thin as K consumed her time with his spelled-out explanations of specific cases and the rigors of judicial methodology. I was about to compliment her on refraining from interrupting when she interrupted him. She'd say, "Sorry to interrupt, but..." Once he kept speaking a little and then said, "Sorry to interrupt" — that is, apologizing for interrupting her interruption. K expressed empathy with DF's concerns. He was super-nice to her, and as things progressed, what I read in her face was pain — pain over wanting him to feel pain. But he's so heavily swaddled in judicial values that he's safe from everything. As a judge, he does what he must do as a judge, even when it pains him. He's pre-pained, inoculated to pain, and there's no way to further pain him. The children who die in school shootings... the women who would die from illegal abortions... these causes for empathy receive his empathy, but they do not change what he must do. His cold, dry judicial virtue is supreme and sublime, and he must, as ever, humbly submit. Feinstein was reduced to scoffing that K had learned (from Senators?) to "filibuster."

8. Orrin Hatch. Maybe I should skip the Republicans. It's not as though they're giving me a breather.

9. Patrick Leahy. The gravelly-voiced Senator — who I'm surprised to see is only 78 — laid an elaborate trap that hyper-focused on some typo-ridden email that a fellow named Miranda had stolen from him. The idea seemed to be that Kavanaugh knew about this terrible theft (which I think may have upset Leahy not so much because it was "stolen" as because it was so embarrassingly badly written). It was was only a draft as anyone could see, so anyone would know it was stolen, stolen... Or something like that. Miranda was a mole, a mole, I tell you!! I think this is video of Leahy...



Kavanaugh kept his cool, but he needed to see the email under discussion, so we had a minute of watching Kavanaugh read. Then Kavanaugh asked Leahy to tell him where to look to see what he was talking about, and Leahy, facing the requirement that he too read on camera, and quite apparently not up to the task, said he'd move on to some other question. So much for the trap. Leahy proceeded to some other document-heavy trap that didn't work, and he tried to blame Grassley for keeping something confidential and — with the 85-year-old Feinstein sitting between them — the 84-year-old Grassley went ballistic on Leahy. Zero progress was made against Kavanaugh, and I think Kavanaugh had to suppress laughter. Here at Meadhouse, we frequently paused and laughed and were all Ahh, but the strawberries that's... that's where I had them. They laughed at me and made jokes but I proved beyond the shadow of a doubt and with... geometric logic...

10. From my handwritten notes, quoting Dick Durbin: "The things I did were unimaginable." He was referring to his work in a slaughterhouse, after getting Kavanaugh to say that the "dirtiest job" Kavanaugh ever had was construction work (or maybe mowing lawns). I wonder what exactly Dick Durbin did in the slaughterhouse, but it was a set-up to excoriate Kavanaugh for going out of his way to decide a case against some workers in a slaughterhouse. It reminded me of the Gorsuch hearings, the way the Democratic Senators got pretty far along toward proving Gorsuch didn't care if a man froze to death. GOP nominees lack empathy. They don't know the suffering in the real world. That's the theme.

11. Senator Whitehouse had some good material, but he was too disorganized and self-indulgent to make it work. A hardworking, on-task, on-the-ball Senator might have built the argument deftly, but Whitehouse was not the man for the job. The idea was something about the role of the Federalist Society in getting judges (including Kavanaugh) nominated, the participation of right-wing groups in bringing cases and filing amicus briefs, and the success of corporations in winning 5-4 Supreme Court cases (where the 5 Justices in the majority were appointed by Republican Presidents). Whitehouse kept reminiscing about his own cases — back in the day when he was a lawyer — and musing generally about various suspicions that have crossed his mind and it's just not good if people think the Court is political. Of course, Kavanaugh coasted through all of this, repeating the standard message that he's dedicated to judicial independence and deciding cases according to the law.

12. Not long after that I got tired. The channel I was watching (Fox News) turned away to cover President Trump and someone from Kuwait — a great country with a lot of great people many of whom Trump has known for a long time. It was refreshing to hear Trump talk after all that Senatorial smeech. The reporters were yelling questions at Trump, and Trump was rattling out answers. Woodward's book is "fiction." Canada will come to a trade agreement. Three million innocent people are surrounded in Syria and Trump is watching, so the Syrian military had better be careful. After that it was hard to settle in to Mike Lee walking Kavanaugh through the Quirin case. It has rained all day, and it was getting dark. What a crazy slog! It's absurd to expect the nominee to be up for this grilling for 8 hours with scarcely a rest. But it was kind of hard on me too. And it's almost 7 o'clock. The "Team of 9" we're thinking of here is not the Supreme Court, but the Milwaukee Brewers. It's the 3rd game of the series with the Chicago Cubs, and we've won the first 2. What an amusing game last night, no? I love when runs are scored in all sorts of weird ways. What was it — 8 runs in a row scored on plays that were not hits?

13. So that's it for me on the Kavanaugh hearings today.

14. It was the emir of Kuwait. Here's video:



15. Here's the video of the Kavanaugh hearing today, including the part that is still happening as I write this (at 7:17 PM Central Time). How brutal! I do wish I'd jumped ahead to see the more junior Senators. I'm especially interested in the 3 who might be running for President (Klobuchar, Booker, and Harris). I'll probably get to these tomorrow.

"Grassley blasts Feinstein for releasing Fusion GPS transcript."

Axios.

"Do you think I spend my day wondering about how Chuck Grassley will go down in history?"

"I don’t care if I ever go down in history. I’m here to do a job and how the history books treat me — my name will probably never be mentioned in the history books."

The old what-about-your-legacy move — whipped out by Harry Reid over the Merrick Garland nomination — doesn't work on Chuck Grassley.

Ironically, this is the post that gets me to make a Chuck Grassley tag.

Is Obama about to pick an Iowan for the Supreme Court to please the Iowa Senator chairing the Judiciary Committee?

The NYT reports: "The White House is vetting Jane L. Kelly...."

Her nomination could intensify pressure on Senator Charles E. Grassley, Republican of Iowa and the chairman of the Judiciary Committee, to break with his party and hold hearings on Mr. Obama’s Supreme Court candidate. In a Senate floor speech in 2013, Mr. Grassley effusively praised Judge Kelly, who has spent her career in Iowa and is well regarded in legal circles there. He quoted from a letter from retired Judge David R. Hansen, a Republican appointee, who called her a “forthright woman of high integrity and honest character” and a person of “exceptionally keen intellect” before voting to confirm her for the appeals court post.

And this is striking:

Five years into her tenure [in the federal public defender’s office for the Northern District of Iowa], she was nearly killed in a brutal attack while jogging on a popular trail in a Cedar Rapids park. Discovered by passers-by lying facedown in a pool of blood, she spent several months recovering and endured multiple surgeries. The crime was never solved, although there was speculation it might have been connected to her work. Still, Judge Kelly later told The Des Moines Register that she had no doubt about returning to her job as a criminal defense lawyer, which she did immediately after recovering from the assault.

"Do I have the best credentials? Probably not. ‘Cause, you know, whatever."

So said Scott Brown, who — look at him, people! — puts the face in self-effacement. What can he do but admit to the short-comings of his residency in New Hampshire, which he'd like to represent in the U.S. Senate? But no other Republican was going to oust the Democratic incumbent Sen. Jeanne Shaheen, so if New Hampshirites want to contribute to tipping the Senate to a GOP majority, they'll have to accept a man with a lot of Massachusetts in him.

Brown moved to New Hampshire last December, but he moved into what had been their vacation house (since 1993). And he was born in New Hampshire, unlike Shaheen, who was born in Missouri, which makes it possible for Brown to say — jokingly? — “Sen. Shaheen is not from here, but apparently it’s a problem with me?” Shaheen has been a New Hampshire resident since 1973.

Massachusetts is closer to NH than Missouri is, but in the closeness there's "a complicated relationship":

They share a state line, professional sports teams and a major media market, but there are traces of resentment among some New Hampshire natives. Thousands of Massachusetts residents moved into New Hampshire in recent years, drawn by lower taxes and cheaper real estate. The migration helped give Democrats a slight voter registration advantage, although the state is considered far more balanced politically than solidly Democratic Massachusetts.

How does that cut for Scott Brown? He comes from Massachusetts, but he's a Republican, and other migrants from Massachusetts have tipped New Hampshire toward Democrats. Resentment toward Democrats from Massachusetts should translate into a vote for Brown, if the longtime New Hampshirites resist the liberalism of the newcomers. And Brown can also try to win the votes of those transplanted Massachusettans, who could see him as their guy.

Brown chuckled when 39-year-old Christine Kalinowski told him she was from “Southie,” or South Boston. She said she moved to New Hampshire just a few months ago, like him.

“I voted for him before,” she said, “and I’d definitely vote for him again.”

There's that dynamic. I suspect the newer residents from Massachusetts think they are the cool kids, and they will like seeing themselves in the gorgeous face of Mr. Brown.

I started thinking about Brown this morning because I was reading a Gail Collins column in the NYT called "The Season of the Twitch," referring to this being the "the season where center stage goes to whoever screws up the most" (and the Donovan song title). Brown's supposed screw up was that quote I put in the post title. Collins calls attention to that, I think, to dilute a truly damaging screw up by a Democrat, Bruce Braley, who was on track to win the Senate race in Iowa, until he got caught on video telling "a bunch of trial lawyers at a Texas fund-raiser that if they didn’t contribute to his campaign, Republicans might take control of the Senate and there would be 'a farmer from Iowa who never went to law school' running the Judiciary Committee."

Having begun with Brown and buried Braley in paragraph 12, Collins scampers back to the topic of Brown, declaring "New Hampshire’s still my favorite." She doesn't explain why, so I'm going to assume it's because it's a Republican screw up. Anyway, thanks to Collins for drawing my attention to this great — and totally not a screw up — ad by Joni Ernst, a Republican who's running for the Senate in Iowa, stating that she "grew up castrating hogs on an Iowa farm":



Ernst and Braley are running for the seat that Tom Harkin is vacating. Grassley is the other Iowa Senator. Braley attacked him as part of an argument for maintaining Democratic control of the Senate. Grassley is 80 years old and has served in Congress since 1975. He does have a family farm, operated by his son. His biography also shows him to have worked as a sheet metal shearer/assembly line worker for more than 10 years, and he has "PhD work" in political science. There's no reason to disparage Grassley for being a farmer. I see more reason to question whether he should be listing his occupation as "farmer," and certainly he deserves attack for hanging around Congress too long. But Grassley is not up for reelection this year. Braley is trying to say it's ridiculous for this man to chair the Judiciary Committee. The question for voters on this score is whether it's less ridiculous than having Patrick Leahy chairing the committee, which is what you get with a Democratic majority. Leahy is only 73, but like Grassley, he's been camped out in Congress since 1975.

Whatever. To sum up: Scott Brown is ultra-handsome, and Joni Ernst is an out-and-proud castrating woman.

Sandra Day O'Connor says attacks on John Roberts "demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch."

She was testifying at a Senate Judiciary Committee hearing on civics education, which doesn't sound as though it was about airing grievances about her old colleagues on the Supreme Court, but Democratic Senator Patrick Leahy — the chairman of the committee — used the occasion to express his concern "about some of the rhetoric about the chief justice. He’s been called everything from a traitor to having betrayed President George W. Bush."

But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:

“It’s unfortunate. Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch, and I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal level...."

But the news media got their sound bite: Unfortunate!

She was also prompted give the other side a sound bite:

Once Leahy was done, Sen. Charles Grassley of Iowa, the committee's senior Republican, wondered whether the real threat to judicial independence came from Obama's remarks in early April, after the court heard arguments in the health care case but nearly three months before it was decided.

"If there's a pending decision at the Supreme Court and the president was to express his views along those lines it would be surprising," O'Connor said. "I guess it could happen, but it's not what we expect and it's not ideal."

Not ideal! Take that!

Grassley also wanted to know what O'Connor thought about Obama's criticism during his 2010 State of the Union speech, with several justices in attendance, of the court's 5-4 decision in the Citizens United case that freed corporations and labor unions of most limits on political spending.

"I don't know if it threatens judicial independence. It's just not what a citizen expects to hear," she said. "It's unusual. It's not how that time is usually spent by presidents."

It's unusual... not how that time is usually spent....

I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.

Ironically, that's a civics lesson.

How Patrick Leahy saved Charles Fried from revealing that many law professors think judges should decide constitutional questions to produce the best policy consequences.

At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"

The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].

Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be." 

It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:

LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?

FRIED: Well...

LEAHY: I mean...

FRIED: Yes, I'm afraid I do.

LEAHY: They don't admit it. But do you know anybody who should disagree with it?

FRIED: Not a soul.

LEAHY: I thought you might feel that way.

Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.

Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!

(I'm sorry I don't have a transcript to link to. Here is video of the event.)

"Specter got it all wrong that I ever used words ‘death boards’. Even liberal press never accused me of that. So change ur (sic) last Tweet Arlen."

So it's come to this.

If it was completely wrong for Sarah Palin to say "death panels," why did the Senate scuttle the provision she was talking about?

Why didn't the congressional Democrats defend their own bill? If it was so terribly wrong to say "death panels" — and what indignation was expressed! — then why wasn't it easy to crush stupid, crazy Sarah for what she so outrageously said? By backing down and removing the language she leveraged, they not only seem to admit she had a point, they sacrifice credibility that they need to promote what's left of the bill.

Here's the NYT article headlined "False 'Death Panel' Rumor Has Some Familiar Roots":

Advanced even this week by Republican stalwarts including the party’s last vice-presidential nominee, Sarah Palin, and Charles E. Grassley, the veteran Iowa senator, the nature of the assertion nonetheless seemed reminiscent of the modern-day viral Internet campaigns that dogged Mr. Obama last year, falsely calling him a Muslim and questioning his nationality.

"Seemed reminiscent"? To whom? "Death panels" was a characterization of a provision in a bill — an aggressive, politicized attempt at interpretation of the text of the proposed law. It was a parry in the debate about the bill, and the bill's defenders could have explained exactly why the text could not mean what Palin said it meant, or they could have rewritten the provision to make it absolutely clear that it meant whatever it was that they'd wanted it to mean when they wrote it. Rather than meet Palin's attack, the Democrats pulled the provision altogether, leaving us wondering what other provisions would have to be pulled if someone subjected them to a memorable — viral — attack.

When a big bill is dumped on us, we are challenged to read and understand the text. Usually we don't, but the text is there, and there's nothing scurrilous about trying to read it, calling attention to worrisome language, and putting our arguments in vivid words. A candidate, on the other hand, is not a text to be read, but there are facts about him that we may want to know. If someone asserts a fact about a candidate and says, for example, that Obama is a Muslim or Obama was born in Kenya, then the candidate, if he doesn't choose to ignore the assertion or simply make his own flat assertion of denial, is forced to come up with some evidence, which may be difficult and may lead to a new phase of the controversy in which the evidence is challenged.

This is completely different from a controversy about a written text that people are trying to read. If the text doesn't mean what its opponents are saying, it should be easy for the authors of the text to show how it means something good or to amend the text and make its goodness obvious. The authors of the text should trounce their opponents. If they can't, we should fear and mistrust them.

If Obama can't convincingly prove he's not a Muslim/not born in Kenya, it only means the rumors might be true, but he was not the creator of the rumor, as the Democrats were the creators of the text that lent itself to Palin's "death panels" characterization.

There is nothing in any of the legislative proposals that would call for the creation of death panels or any other governmental body that would cut off care for the critically ill as a cost-cutting measure. But over the course of the past few months, early, stated fears from anti-abortion conservatives that Mr. Obama would pursue a pro-abortion, pro-euthanasia agenda, combined with twisted accounts of actual legislative proposals that would provide financing for optional consultations with doctors about hospice care and other “end of life” services, fed the rumor to the point where it overcame the debate.

On Thursday, Mr. Grassley said in a statement that he and others in the small group of senators that was trying to negotiate a health care plan had dropped any “end of life” proposals from consideration.

Ha ha. I think that "On Thursday" paragraph had to be edited in a the last minute.

A pending House bill has language authorizing Medicare to finance beneficiaries’ consultations with professionals on whether to authorize aggressive and potentially life-saving interventions later in life. Though the consultations would be voluntary, and a similar provision passed in Congress last year without such a furor, Mr. Grassley said it was being dropped in the Senate “because of the way they could be misinterpreted and implemented incorrectly.”

Not just "interpreted... incorrectly" but "implemented incorrectly"! Well, there you have it! We are absolutely right to fear the way laws may be implemented. What does "incorrectly" even mean? If the language is there to be implemented a particular way, what should we care if the members of Congress preserved an out for themselves, letting them say that was not what they meant? It only makes it more underhanded!

The extent to which it and other provisions have been misinterpreted in recent days, notably by angry speakers at recent town hall meetings but also by Ms. Palin — who popularized the “death panel” phrase — has surprised longtime advocates of changes to the health care system.

"Misinterpreted in recent days"... and potentially misimplemented in future days, when it's too late and the law's the law.

... Former Senator Tom Daschle of South Dakota, an advocate for the health care proposals, said he was occasionally confronted with the “forced euthanasia” accusation at forums on the plans, but came to see it as an advantage. “Almost automatically you have most of the audience on your side,” Mr. Daschle said. “Any rational normal person isn’t going to believe that assertion.”

Yes. Then why didn't Democrats argue their side? Why did they back down? I suspect it's because they really did hope to save money by substituting painkillers for curative treatments for the old and disabled.

Senator Grassley: Sotomayor "doesn't have a clear role of what the Supreme Court is."

Doesn't have a clear role of what the Supreme Court is?

He can't talk right, but he has a vote, and he's voting against Sonia Sotomayor.

Grassley said his vote in part is based on second thoughts he has had about Souter, confirmed in 1990.

"I can say my vote for him is probably the only vote for 11 or 12 Supreme Court justices that has come back to haunt me from time to time," Grassley said. "I think Judge Sotomayor's very lukewarm answer that she gave me left me with the same pit in my stomach I had as a result of my vote for Souter."

Pit in my stomach? Oh, good lord, he really can't talk right. From Common Errors in English:

Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.

So, Sotomayor either does or does not make judicial decisions emanating from empathy and Wise Latina experience, and Grassley feels his decisions in his stomach and when they feel like the part of a fruit that he shouldn't have eaten — or when he's haunted — he votes no.

Does anybody have a clear role about anything anymore?

Live-blogging Day 2 of the Sotomayor confirmation hearings.

8:16 CT: Just setting up a post. The hearings begin at 9 CT. Stop back.

9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.

9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where policy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.

9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deny the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to reframe her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.

9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.

9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.

9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.

10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.

10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.

10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.

11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.

11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.

11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.

11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?

11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.

1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.

1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.

2:11: Sotomayor disentangles herself from Obama's line about "heart":

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

Sotomayor sticks to her strategy of declaring fidelity to the law. None of this "heart" business for her.

2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?

3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.

3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an originalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.

3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.

3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.

3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.

6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?

"Resign, or go commit suicide." Who said that to whom?

Sen. Charles Grassley said it to the executives at AIG.

Now, let me be fair. Let me put it in context. He was also telling them to act more Japanese:

"The first thing that would make me feel a little bit better towards them if they’d follow the Japanese model and come before the American people and take that deep bow and say I’m sorry, and then either do one of two things — resign, or go commit suicide."

Later, he got a spokeswoman to clarify. (Is it really sufficiently Japanese for a man to get a spokeswoman to explain his remarks?)

[S]pokeswoman Jill Gerber clarified Grassley’s comments, saying "clearly he was speaking rhetorically – he meant there’s no culture of shame and acceptance of responsibility for driving a company into the dirt in this country. If you asked him whether he really wants AIG executives to commit suicide, he’d say of course not."

Okay, then: Fuck yourself, Senator Grassley. That's rhetoric. Of course, I don't really want you to fuck yourself. And, actually, I agree with you. We need more shame around here. Let's do some shaming. Let's shame everyone in the executive branch and Congress who let our money flow into AIG without building in the kinds of restrictions that would have prevented the use of the money in the way that Grassley and others are bitching about now that it's too late. So bow down, Senator Grassley. Take a deep bow and say you're sorry. And then resign or go commit suicide like the Japanese stereotype that you think is cool to bring up when you are making a display of venting your anger at the people you want us Americans to be angry at — instead of you.

Day 2 of the Roberts hearings.

I'm getting a late start, but I will persevere, beginning at the beginning, with the help of my TiVo.

Arlen Specter starts off the questioning, asking about stare decisis in general and Roe v. Wade in particular. Roberts sticks to the general and avoids the particular. Specter pushes his term "super-stare decisis" for Roe and whips out a gigantic poster listing the 38 cases that "reaffirmed" Roe v. Wade and asks if Roberts would think "Roe might be a super-duper-precedent." Roberts emphasizes that it is Casey that really matters, because that is the case where the Court addressed Roe and stare decisis and genuinely reaffirmed it. The other cases, I add, didn't so much "re-affirm" as simply accept and apply.

As noted in an earlier post today, Roberts states that he recognizes the existence of a constitutional right of privacy, but he frames his answer in a way that should appeal to conservatives as he stresses the constitutional clauses that express privacy rights. As to the rights in the penumbra, he says nothing. Instead of pursuing Roberts about that, Specter tries to get him to say Roe is a locked-in precedent. Of course, he does not.

Asked about the "notion of a Living Constitution," Roberts makes the seemingly unRehnquistian statement: "I agree that the tradition of liberty is a living thing." I say "seemingly," because it is well known that Rehnquist (like Scalia and many conservatives) rejected the notion that the Constitution changes to keep up with the times, but Roberts didn't say that it did. He said that "tradition" is a living thing. Whether the ongoing, living tradition of liberty makes its way into the interpretation of constitutional clauses containing the word "liberty" is another question. If Specter were sharper, he would have done a follow-up question.

Patrick Leahy asks a series of questions about separation of powers. "Isn't this hornbook law?" he asks when Roberts can't answer a difficult question about whether Congress can vote to stop a war. Leahy seems peeved that the answer isn't an obvious consequence of the power to declare war. Roberts handles these questions well, even though Leahy frequently interrupts him.

Questioning Roberts about standing doctrine, Leahy misses the entire point by not recognizing that injuries to the environment are enough to give a person standing. He blurs them into the same category as no injury at all. Roberts sincerely sorts through basic doctrine — this really is "hornbook law" — and doesn't make it excessively obvious that Leahy doesn't understand what he's trying to talk about. Leahy mumbles his way into another interruption talking about — what? — tennis star? Oh, Kenneth Starr. Oh, lord, I wish Leahy's turn was up!

Orrin Hatch lays out the various methodologies of constitutional interpretation, taking categories from a Cass Sunstein book. Roberts doesn't like the labels and calls himself a "modest judge." He goes on to speak comfortably and fluently about how judges ought to behave, and it makes me think that Hatch lobbed him a nice nerf ball. The Hatch questioning makes a lovely resting point for Roberts — and yet he's saying a lot of basic things that are useful for people to hear. "It is emphatically the province and duty of the judicial department to say what the law is" — I try to say that at least once a week myself.

Roberts expresses confidence in the ability of judges to draw difficult lines. There is a difference between "making the law" and "finding the law," and judges know when they've crossed the line dividing the legislative from the judicial, he says. He thinks some judges go too far deferring to the legislature on the theory that they can't draw that line and can't say what the limit on Congress's power is, but deference to the legislature is also important, he elegantly adds.

Ted Kennedy invokes Katrina to bring up his themes of poverty and inequality. He outlines the history of civil rights cases and laws and asks Roberts to state that the progress that has been made is "irreversible." Kennedy becomes extremely antagonistic to Roberts over various issues — you can refer to the transcript for the details — interrupting Roberts repeatedly and looking quite angry. Several times, Arlen Specter has to tell Kennedy to let Roberts finish. At one point, when Roberts is just beginning an answer, Kennedy seems to snap "Roberts" at him, with no "Judge" or "Mr." in front of the name, and we rewind several times to try to figure out if Kennedy was indeed that rude. I still don't know, due to Kennedy's irritating garbling. Kennedy might have some good points to get out, but his anger and rudeness thoroughly undercut his presentation.

Chuck Grassley reads some legal material in a too-loud voice and asks Roberts to opine on it. The exchange with Grassley is very similar to the one with Hatch. Courts decide cases according to the law, you know. I'm trying to resist hitting the fast-forward button.

I succumb to temptation and fast-forward a bit. I stop at a point where I see Roberts' wife yawning. First laugh of the day, I think.

Joe Biden begins by saying "Hey, Judge. How are ya?" Then, "Look, Judge, uh, I'm gonna try to cut through some stuff if I can." What are the chances that Roberts is fooled into thinking he's facing an amiable, jovial pal? Biden goes on at length playing with yesterday's baseball metaphor and really gets on my nerves. When will he get to a question? Finally, he gets to the question whether Roberts thinks there is a right of privacy in the Fourteenth Amendment. Good! Roberts: "I do, Senator." But he can't extract much detail after that, as the two men get bogged down in how much Justice Ginsburg revealed when she endured her Senate hearings.

C-Span breaks away for its ritual of the opening of the House of Representatives, and Biden is ousted by those inconsequential 5 minute speeches. What an indignity! So, I must fast-forward.

It's time for Herb Kohl. Kohl gets Roberts to say that he believes in the right of privacy articulated in Griswold, as later framed in terms of substantive due process. That is to say, he doesn't endorse the notion of rights in the penumbra of the Constitutional clauses, as stated in the case. Roberts puts the right into the due process clause, as later cases did. But how big is this privacy right? Roberts will only say that it covers at least what Griswold spoke about — married persons' right to use contraceptives. The reason he would talk about that but not abortion is that he's sure that there would never be another case on that subject. That's a neatly framed position! It stops those who would try to destroy him for not believing in the right, but it commits him to nothing that he might actually decide.

Kohl is a mellow questioner.
Mike DeWine raises some interesting issues about FISA courts and then free speech. He doesn't so much seem to be testing John Roberts as publicizing legal issues of note. Now he's getting to a case I'm especially interested in, Garrett, which one of the Senators yesterday misrepresented as finding the Americans With Disabilities Act unconstitutional. (The Court merely found part of act not to be supported by the Fourteenth Amendment power, which meant that Congress could not abrogate state sovereign immunity. To put it simply, that limits plaintiffs to prospective relief when the defendant is one of the states.) DeWine's question is about judicial deference to congressional factfinding. The problem in Garrett was that Congress needed to find not just that persons with disabilities had suffered discrimination, but that their Fourteenth Amendment rights had been violated. There is a big discrepancy between these two things, however, because this kind of discrimination only needs to pass a minimal scrutiny test not to violate the Equal Protection Clause. So it's not really "factfinding" that was at stake in Garrett, but legal analysis about what rights are, which is the approprate role of the courts. But what Roberts talks about is how later cases — Hibbs and Lane — have been more deferential to Congress and how the the law in this area is still evolving. Basically, he is distancing himself from Garrett, which many people find distinctly unsympathetic. Roberts does not make any effort to explain the actual legal issue in Garrett. I'm sure that was a smart move, actually, rather than to try to explain the legal point I just did. No one would appreciate it.

Dianne Feinstein asks about several quotes that seem to reflect insufficient concern about women's rights. When he explains that the crack about encouraging homemakers to become lawyers was a joke, she chides him about his tone. Why isn't he modest and humble all the time? God forbid anyone should ever have a light moment and try to get on the Court. She moves on to ask about the Commerce Clause. He calls attention to the recent Raich case, emphasizing how broad the power the Court has recognized is and how minor Lopez and Morrison were. Feinstein brings up the separation of church and state and makes the blatantly untrue assertion that there is more divisiveness among religious groups now than ever before in our history. She tries to get him to state a belief in "the absolute separation of church and state." Of course, he doesn't. He says he doesn't know what the concept means, indicating that he sees Establishment Clause questions as complex, making me think he'll continue the trend of cutting the cases down the middle and offering up no clear answers.

Hey, it's grueling listening through all of this. It must be hard on John Roberts. It's just weird to have to sit there and be grilled all day long. Ah, but he'll have to work long and hard on the Court. Why not test his stamina?

Jeff Sessions. I'm skipping this one. Sorry.

Russ Feingold. First question: Why not televise the Court's arguments? Please say yes! Roberts talks way too much here, for some reason. Maybe he's trying to run out Feingold's time. Second question: How did September 11th affect your thinking about the law? Again, he gets weirdly chatty, telling the story of how he heard about the attacks unusually late, which was interesting but utterly irrelevant. Again, I'm thinking he's trying to eat up Feingold's time. Really strange! He hasn't done this to any of the other questioners. Feingold pushes him to focus on the question of undervaluing rights during wartime. This part is productive. Roberts is fairly noncommittal, but shows a somber concern about rights, as, of course, he must. He flatly rejects Korematsu.

Lindsey Graham wants to talk to Roberts "about life." He circles around a bit and hits on the question: what was Rehnquist's legacy? Roberts' answer is too generic for Graham, so Graham blurts out what he cares about: you're going to be like Rehnquist, aren't you? He follows up by asking what Bush meant by introducing him as a "strict constructionist" and then what is meant by the Reagan Revolution. Graham makes no secret of his goal of establishing that Roberts is conservative. Then he blasts all the Democrats in the room for thinking Bush would or should do anything other than nominate a conservative. Moving to particular substantive questions, he throws out the best-phrased question of the day: "I think it stinks that somebody can burn the flag, and that's called speech. Whaddya think about that?" Another Grahamism (about the ACLU): "In the conservative world, how does that rank on the food chain?" I'm amused again, but what is Roberts supposed to say about that? Graham rants about Justice Ginsburg, who, among other things, wants to do away with Mother's Day and Father's Day. I think I hear a gasp from the audience. You know, Graham is amusing me — more than anyone else today — but I think his tone is a bit clownish for the occasion. Still, he works his way to the bottom line deftly. The Republicans voted for Ginsburg, though she was clearly liberal: "They deferred to President Clinton because he won the election."

Sitting behind Roberts are three women (one of whom is his wife) dressed in neat, pastel colored suits. All have tasteful jewelry, sleekly nyloned legs, and the absolute obligation to sit still on stiff chairs. I'm starting to feel really sorry for them!

Uh-oh. It's Schumer. He says, "So you will be Chief Justice." Okaaaay. If Schumer's saying that, then can we all just please go home? Schumer admits to being "pleasantly surprised" by some of his answers. He sounds bored by his own disquisition. The Constitution is supported by "three legs"? I expected Schumer to be more of an attack dog. But he knows this is pointless. The cameras pick up Leahy and Specter, who seem to be finding this all very tedious. Or am I projecting? It's 10:43 here now and I've been trying to get through this since 2:30. Schumer introduces the topic of Wickard v. Filburn, then goes "ummm," in a tone that — to me — says, oh f**k, who's going to care about Wickard v. Filburn?

John Cornyn. Sorry, I'm skipping this one too. I expect him to support Roberts, so nothing much can happen here.

Dick Durbin is blabbing about Justice Blackmun, who, according to the Dictionary of Received Ideas, stands for the infusion of human emotion into judicial decisionmaking. One must quote the phrase "Poor Joshua!"

My C-Span recording shifts over to covering some vote on the House floor, where it stays until the end. So I've won a reprieve! There's nothing left for me to TiVo-blog. So there will be no Sam Brownback for me. (I don't care. He was boring.) And no Tom Coburn. No Cryin' Tom. Damn! Not really. I've had enough. I can't believe these characters are going to dribble on for another day.

I wonder what John Roberts will do tonight. I suppose he has to spend the whole evening going over the details of today's performance with his various advisors. But I'd like to think he didn't. I'd like to think he went home and had a nice dinner and a glass of wine with his wife, spent the evening playing Uno with his kids, went to bed early, and is now sleeping soundly. Dreaming — of what? Gloriously striped robes.