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?

"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.