"Softballs"

I was alerted to a bunch of "softball" questions the Republicans have been asking Judge Roberts. Wonkette thinks she is being clever. Actually, she's just showing her own ignorance.

To take just two examples:

COBURN: Would you agree that the opposite of being dead is being alive?

Coburn asked this question first:

In all 50 states, death is recognized and defined as the irreversible cessation of the brain and heart activity. Do you have any reason to dispute that?

When Roberts demurred, Coburn asked the other question, half-jokingly, to merely get to his point (which was, of course, about abortion: if we define death as the cessation of those things, then we should define life as the existence of them). It wasn't a softball, it was just a way to move on to his point.

Wonkette also mentions this gem from:

GRAHAM: But, you know, it's a free country and that's just the way it is. Right?

In Graham's case -- remember, he's a lawyer -- he was countering statements and implications made by the Democrats, giving Roberts additional opportuity to respond directly, as many defense lawyers might do. Yes, Graham is not in the defense here, but Schumer is not supposed to be a prosecutor either, and that's how he has been acting.

[Update: Graham just noted in today's session what I wasn't sure about: he was, in fact, a defense attorney (in the Air Force). Unsurprising, given the deftness with which he has defended Roberts on a few occasions.]

So this was a direct response to earlier the same day, when Schumer was asking Roberts to comment on terrible things people on the right -- Tony Perkins, Pat Robertson, and others -- said about the court. Schumer asked:

Don't those statements turn your insides a little bit?

Roberts responded:

You know, again, I don't agree with them. But it's a free country. They're free to say what they wish.

Schumer didn't like Roberts responses, and said:

Would you be a little stronger than that in terms of language like this? I mean, not appropriate, is kind of mild in these kinds of sort of inflammatory-type statements about the judiciary that you may soon be entrusted with protecting. ... I'm asking just your First Amendment opinion of these kinds of things, and the most I guess you said is you disagree.

So Graham asks:

What's it like to go through the nominating process in 2005 from a personal point of view? I've been watching television, channel flipping, and I see some awful things said about you. Have you seen those things? ... How does that make you feel? ... How's it make your family feel? ... But you know, it's a free country, and that's just the way it is. Right?

So in fact, Graham was being a clever lawyer, by showing that Schumer's attempted implication that Roberts might have had agreement with those statements merely because he did not "strongly" condemn them was nonsense.

Context is king. Wonkette and many other silly people out there don't know it, or don't care.

Oh, and what no one is really reporting is the excellent answer Roberts gave to Schumer right after jokingly noting his favorite movies, right before they adjourned.

The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences. The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion. And in my experience, every one of those stages can cause you to change your view. The view you ask then of me, Well, what do you think, is it correct or not? or How would you come out? That's not a result of that process. And that's why I shouldn't respond to those types of questions. ...

Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach. I have taken what I think is a more pragmatic approach and said, if I don't think that's likely to come before the court, I will comment on it.

And, again, perhaps that's subject to criticism, because it is difficult to draw the line sometimes. But I wanted to be able to share as much as I can with the committee in response to the concerns you and others have expressed, and so I have adopted that approach.

What he said about bargaining missed the mark I think (I agree with what Schumer said later: they are not looking to bargain with Roberts, but rather to find reasons to oppose him), but the stuff before that about giving opinions outside of the actual judicial process was spot-on.