A bingo card for the upcoming Kagan debate.

I'm told this is making the rounds in Washington, D.C.



(Enlarge for easy reading.)

ADDED: I'm told this bingo card was distributed by Senator Cornyn's office for the Roberts confirmation:

"Justice Scalia is Not a Nice Man. A fanboy learns the truth."

Well, the insolent fanboy has won the sympathy of at least one law blogger, but really... You presume to take up the Justice's time at a book signing and you haven't got a copy of his new book? You bring his 1997 book to get an autograph? I mean, I can see how an unsophisticated person might think it's okay to try that, but when it didn't work you should have felt chastened. Instead, you write a long letter — with typos and references to "Star Trek" and Jimmy Carter — scolding Justice Scalia?

I presented my book [A Matter of Interpretation], you took it, looked at the front cover, and gruffly said, "This is not my book. I won't sign this book." The book was pushed aside and you waived [sic] me away.

At first I thought you were joking. You had to be. Who doesn't sign their own book at a book signing? Apparently you don't. As the massive crowd poured in I tried to show you that the cover said in large bold print: 'BY ANTONIN SCALIA.' You were having none of it.

The event was free for me because I am a law student. In fact, I only went because it was free. I had class that night but skipped because this was going to be so much better than learning about informal rulemaking procedure in Administrative Law. I intended to buy your new book [Making Your Case] when I had the money. For now, I owned this book. It had inspired me. It was the one I wanted signed. And again, you'd already made the royalties off of it when I purchased it. So what could be the harm?...

I think it is important to note that you are a public servant. While you are not a member of the political branches, you nonetheless are on the public pay roll. It should be an honor for you to be admired so much that people even want your signature. But you have become arrogant and aloof in your marble castle up on the Hill.

If your intention was to sell book you have a funny way of going about it. Now I will never buy your new book, whereas I was looking forward to it before. I will tell everyone I speak to on the subject of Originalism and the Court how big of a jerk you were. I am not famous but I am well respected by those who know me. Any books you sell will not be from my recommendation.

But the worst part of it is that from now on and for the rest of my life I will never think of you the same way. From now on you will not be the lovable jerk you come off as. Instead you will be like a philosopher king growling at his peon subject.

Earlier in the evening you wouldn't even take a picture with me. I understood because of the onslaught of photos that would inevitably follow. I had the honor of meeting Justice O'Connor, who was speaking at my school, a few months ago. After the event she was in a hurry to be somewhere. I asked if I could have a picture with her. Though she was clearly put out she took thirty seconds out of her life to do something nice for an admirer. In my life this has been true of Lenard [sic] Nimoy (Spok [sic] from Star Trek), Stan Lee (creator of Marvel Comics), Senator Cornyn of Texas, and former President Jimmy Carter. They were all busy people and they took a few seconds to do something nice for a fan and member of the public. There are stories John Wayne would talk to his fans for hours while his food got cold. What can I say? You're no Duke.

I'm sure you won't care about me or my letter. You may not even see it. If you do you'll probably only correct the grammar and then throw it away. You'll see yourself as the victim of a slanderous smear campaign by a looser [sic] fan who can't afford a book. But you brought it on yourself by not taking a few seconds to sign a book you wrote at a book signing.

I like this comment at the second link: "This guy is a fan of Scalia *and* Jimmy Carter??? Something doesn't smell right." Yes, think about it. People who don't like Scalia could wreck his signings by bringing the wrong book (and trying to provoke a reaction by babbling and pointing to his name on the cover). I'm picturing hordes of Scalia haters deliberately screwing up his signings: Okay, when you get to the front of the line, you pull out your downloaded copy of his dissent in Lawrence v. Texas, tell him how brilliant and inspiring you found it, and beg him to autograph it.

ADDED: Justice Scalia's new book is "Making Your Case: The Art of Persuading Judges."

"The Daily Show" analyzes some campaign ads.

Very funny.

Now, I actually think that John Cornyn ad is terrific, though I find it hard to imagine the impression it would make on people who were unfamiliar with the original Jimmy Dean song "Big Bad John." Or does everyone know that song? "Then came the day at the bottom of the mine, when a timber cracked and men started crying...." I don't know if John Cornyn is ready to grab a sagging timber and stand alone like a giant oak tree and save crying men from a mine cave-in — or accomplish the congressional analogue of Big Bad John's heroic feat — but I love the invocation of that amazing ode to masculinity. "The Daily Show" did a fabulous job of lampooning Cornyn's ad — but, of course, it was already suffused with charming humor. (By the way, here's a tribute to John Wayne that uses "Big Bad John.")

And let's talk about the MoveOn.Org ad that begins the "Daily Show" clip. That was not suffused with humor. That was meant to hit you in the gut — and you either merge with the don't-take-my-baby message — as some members of the "Daily Show" audience audibly do — or you're disgusted and outraged at the low blow.

Why I haven't blogged about Justice O'Connor's speech.

People keep emailing me the link to this NPR report on a speech that Sandra Day O'Connor gave at Georgetown the other day. I assumed I would blog about this speech yesterday after some of my students brought it up. So let me explain why I didn't blog about it. We don't have the full text of the speech, just Nina Totenberg's summary, and it seems to me that everything in it relates to stories that were current last April, which I blogged about back then quite extensively. In a long post titled "Stirring up hatred against judges," I wrote (in part):

People have been complaining about "activist" judges for years. But here's a Washington Post report on a Senate speech by Senator John Cornyn that speculates that judicial activism might cause violence....

The article connects that remark (which seems to be a rather idiotic sort of talking off the top or your head) with Representative Tom DeLay's recent comment....

DeLay was grousing about the judges in the Schiavo case; Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18.

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.

I continue the discussion the next day in "Judicial politics." The next post, "Congress and the judiciary -- with a response from Justice Kennedy," acknowledges that Justice Kennedy had addressed the subject. (He said, when pressed as a House committee hearing that "disagreements over the meaning of the Constitution were 'a very important part of democratic dialogue.'") There's a fourth post on the subject here.

Listening to Totenberg's report, I got the feeling she'd heard a stock speech composed a year ago. It referenced those old Cornyn and DeLay remarks, as Totenberg reports. I agree with O'Connor's points and think Totenberg put together a spiffy report, but it felt like a report from last year, too stale to address. Cornyn and DeLay haven't continued with that idiocy, and a lot of things have happened since then. Why not address those things? Why not say something about how the push-back against Cornyn and DeLay changed their behavior? Maybe she did say some other things that would have seemed fresher. I don't know. I don't have the text to use to find other things that might inspire some blogging. But the text is withheld. Why? Well, one reason for not releasing the text of a speech is because you want to deliver the same speech over and over again.

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 getting 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.

Stirring up hatred against judges.

People have been complaining about "activist" judges for years. But here's a Washington Post report on a Senate speech by Senator John Cornyn that speculates that judicial activism might cause violence:

"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."

The article connects that remark (which seems to be a rather idiotic sort of talking off the top or your head) with Representative Tom DeLay's recent comment:

"The time will come for the men responsible for this to answer for their behavior."

DeLay was grousing about the judges in the Schiavo case; Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18.

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.

UPDATE: First, thanks to Glenn Reynolds for linking. ("I agree with Ann Althouse.") Second, before you reflexively email me in defense of Cornyn, read what I've written. Don't tell me to pay more attention to specifics of what he said without paying attention to the specifics of what I've said. And you needn't inform me that he was a state supreme court justice. That fact is in the Washington Post article, which I obviously read. And I'm also perfectly aware that he's structured his remarks to preserve deniability. He doesn't openly encourage violence, and I didn't say that he did. He's legitimating hostility toward judges, however, and portraying the judges as out-of-control power-wielders. And he's expressing understanding for people who snap and express hostility with violence. That is going too far. My conclusion above is: for a public figure even to hint at violence as a solution is completely unacceptable. I stand by that. Cornyn should know better and behave more responsibly. There are unbalanced people out there who take things the wrong way, and judges -- especially trial judges -- are on the front lines, dealing with dangerous people and often frustrating them.

ANOTHER UPDATE: Beldar urges me to read the whole text of the Cornyn speech and also writes that Cornyn, as a former judge, has a better understanding of how judges decide cases than I do. First, when I wrote "It is really a shame how little people understand of the reasons judges decide cases the way they do," I was referring to the reasons given in written opinions, which I've been reading for a quarter of a century. I have a complaint with people in the political sphere, as Cornyn is today, who score political points portraying judges as illegitimate. Almost no one in politics and media tries to explain the reasons given in writing for a decision, which is the judge's own defense of his exercise of power. The judge can't go on TV and explain that reason to you. You're supposed to read it. But you probably won't. You'll probably just listen to someone tell you what the judge did, but nearly everyone offering up that information has an angle. These people are spinners and self-promoters of one kind or another.

Now, I've read the whole text of the speech, which is mostly justifying his bill to bar courts from citing foreign law. It's full of boilerplate about how much he respects judges, but it also excoriates Justice Kennedy for referring to foreign law in Roper v. Simmons to determine that it is "cruel and unusual" punishment to execute a person for a crime he committed when he was less than 18 years old. I don't think the whole context changes things very much. Politicians know the spiciest part of a speech is the sound bite. Edit it out if you don't mean it.

YET ANOTHER UPDATE: This post has gotten a lot of attention. (One post that receives two Instapundit links and two Powerline links on the same day? That's some sort of record.) I stand by the precise statements I made, and I call them as I see them. I'm not into backing the Senator or being part of a weird swarm trying to make trouble for the Senator. I see Atrios is writing "this really is a resignation causing statement," and that goes too far. Cornyn should not have said what he said, and he's groveled, so I'd let it go for now. But I note that his new statement has this:

Our judiciary must not be politicized. Rhetoric about the judiciary and about judicial nominees must be toned down.

I'll hold him to that and keep an eye on what he does next. It seems to me that with his bill about judges citing foreign law, he's deeply involved in advancing his career by overstating problems with the judiciary.