First and foremost, we must thank those senators who took a principled stand to protect the rights and freedoms of all Americans, rather than the interests of a powerful few.

The vote today yesterday, at 58-42, shows just how divisive Samuel Alito's nomination was. Democrats, along with a Republican and an Independent, came together on the Senate floor to reject Judge Alito's nomination and the agenda of a radical conservative movement that was clearly expressed in his writings and statements and embodied in his judicial record.

We will continue to fight to preserve justice for all Americans and to expand, rather than restrict, our freedoms. We hope that you will continue to fight the good fight along with us.

Senator Kerry's courageous action marked a recognition of the importance of this vote This isn't just another academic debate about seemingly-arcane legislation—the vote senators make on this nomination will shape the future of our country for decades to come. There have been just two days of debate—two days of debate over a lifetime appointment to a sharply divided Supreme Court. Two days of debate at a time when the White House is attempting to circumvent and undermine the Constitution. Two days of debate when vital rights and freedoms are being challenged by the most radical fringes of this country at every turn. Two days of debate when the upholding of our system of checks and balances is more important than ever.

Will Kerry's filibuster attempt be successful? Only time will tell. Perhaps, however, it will drive home the often underappreciated message that the decisions of the Supreme Court reverberate in the lives of all Americans, that it is incumbent upon our political leaders to select judges who will provide everyone a fair hearing of their grievances, and that the country would be worse off if the Supreme Court were to roll back the hard-fought battles to expand justice and individual liberties. Senator Kerry, and senators like Ted Kennedy who are supporting him, recognize that Samuel Alito does not embrace the ideals of fairness, justice and equality that make this country great. Hopefully other senators, both Republicans and Democrats, will join them in their attempt before it is too late.

Lindsey Graham (R-SC) was also apparently less than pleased with the vote, though for different reasons, even throwing the gauntlet down and threatening to clean Democrats' clocks (seriously, that’s what he said). Very scary. He said he wanted to have a debate over the merits anytime, any place. But that's not true. He didn't want to, nor did Samuel Alito, nor did John Cornyn or Arlen Specter or any of the other Republicans who lamented the party-line vote and divisiveness while clinging to the party lines themselves. Because if they’d wanted to have a debate, we would have had an open conversation about Alito's record. But we didn't. The judge decided he didn't want to talk about it, or that he'd rather talk around issues or obfuscate or do just about anything than actually talk about the substance of his record or his views or ideas on the law. Why? Because that is a battle he couldn't win. Instead, he tried to talk his way into one of the most important jobs in the country using empty platitudes. He did tell us what he’d do, though - he'd be the same kind of jurist he is on the Third Circuit. Between unconstitutional strip searches and dismissing legitimate claims of extreme workplace harassment, please excuse us if we aren't comforted.

So, Lindsey Graham, we aren't going to make ridiculous sounding threats, but we are going to say that we tried to have a debate about ideas and the law and the future of the country, but instead we were fed evasion and hyperbole and rhetoric and that is not how the process should be. If Judge Alito is so afraid to even discuss his ideas, why shouldn’t we be afraid of what those ideas are?

Now we move on to the next step: the Committee vote. The vote was held over until the 24th. Congress is also back in session this week, so the Judiciary Committee doesn't have the halls of Hart to themselves anymore (really putting a damper on some killer parties).

We'll keep you updated as we move forward.

We have a wrap-up of yesterday (and today's) highlights in several parts.

The line of questioning undertaken by Senator Schumer perhaps best highlighted the problem with Judge Alito’s record: he inconsistently applies the law to achieve results that favor powerful interests over the individual. (Or, in the words of the senators, favoring the big guy over the little guy. Not to be confused with Senator Coburn’s “small people,� of course.)

In three cases, Judge Alito reached very different conclusions. We have already touched upon the Pirolli case, where Alito said that the plaintiff—who had been subjected to brutal sexual harassment—should not have his case considered because the lawyer who prepared the brief did an inadequate job. However, in a death penalty case, Judge Alito actually offered an argument for the government that prosecutors had not included in their brief. Judge Alito argued that federal judges had a duty to overlook some procedural problems when they reviewed convictions by state courts than they did when reviewing decisions by lower federal court. However, Senator Schumer pulled out another example of his inconsistency on such matters.

Dillinger v. Caterpillar, Inc. involved an injured worker suing a company for defectively designing the brake system that led to his injuries. Again, Judge Alito overstepped his role as an impartial adjudicator and provided an argument for the defendant that the defendant did not provide itself. When presented with the opportunity to aid a corporation he took it, just as he did for the government in the criminal context. When presented with the opportunity to correct manifest injustice carried out against a mentally retarded individual he dismissed the case on procedural grounds. That sounds like just what we want in a justice!

Judge Alito’s testimony concluded at around one, and after an executive session (Senate speak for a closed session when they can speak freely about confidential material from the nominee’s FBI file—or maybe just gossip and talk about the Redskins) the Senate went out to lunch.

All in all, we had evasive testimony from Judge Alito. We saw inconsistencies in his explanations in troubling issues like Vanguard and CAP. And most of all, we saw an unwillingness to proffer his views on anything that could remotely be considered controversial. We do, however, have his memos and 15 year record as a judge. And those things together show a conservative legal agenda determined to favor the powerful over the weak and government intrusion over individual rights. The nomination of Samuel Alito is not a step forward for progress and justice in this country, but rather a disturbing vision of what “justice� could become in this country.

We heard from a panel of judges (including Donald Trump’s sister! Her hair was marginally better, but that really isn’t saying much) in favor of Alito. We know we were surprised to hear such glowing remarks from sitting judges that could have their decisions reviewed by Alito should he be confirmed. Not an ethical minefield at all.

In our opinion, the star of the hearings was Goodwin Liu, professor of law at Boalt School of Law at the University of California Berkeley. He explained in very clear terms that Judge Alito’s legal reasoning is very clear and that he inevitably chooses a path that gives no benefit of the doubt to individuals seeks to protect their rights.

Though we were scheduled to be done yesterday, things ran a little long (Senate proceedings running long? Shocking, we know), so we continued with three more panels of witnesses today. Frankly, that’s fine with us. Not only do we love watching C-SPAN for hours on end, but since a Supreme Court confirmation is for life, well, it might be a good idea to take some time to really consider it. It certainly couldn’t hurt.

Chairman Specter expressed the desire to get the questioning of Alito wrapped up tonight, but his attempts to rush through the one job interview the American people get with a lifetime appointee to our nation's highest court was rejected. Tomorrow we'll have a third round of questioning that Senator Specter said would be limited to 25 minutes, barring any special circumstances (per Senator Leahy’s discretion).

We hope that Judge Alito will take advantage of this opportunity to provide full and clear insight into his views and what kind of justice he would be if confirmed.

Senator Feinstein hit upon a rather severe inconsistency in Judge Alito's performance thus far. Alito's been very forthcoming about his opinions on a number of constitutional issues, but has specifically refused to do so with respect to Roe v. Wade. One of his rationales for this difference: he can't comment on issues that might come before the Supreme Court. But Judge Alito has been very open about his feelings on the concept of "one-person-one-vote," even though, as Feinstein noted, the Supreme Court will hear a case taking this issue up in just a few months. In response to Senator Schumer later in the hearing, Alito said he'd perhaps been too forthcoming on certain issues, but wasn't going to go any further with respect to his feelings on the constitutional right to abortion. For the record, that leaves his statement that it his personal view that "the Constitution does not protect the right to abortion," as the only clear articulation of his position.

Alito was also treated to some hard-hitting questions from Senator Cornyn, who asked him - we're not kidding here - if he was a clone of anyone. Well played, senator. Well played, indeed.

FIREWORKS! Senator Kennedy continued to push Judge Alito on his membership in the explicitly anti-woman, anti-minority Concerned Alumni of Princeton (CAP). In 1985 Alito was proud enough of that membership to tout it in a job application, but now he doesn't remember being a member or his reasons for joining. Senator Kennedy brought up the fact that CAP had sent a letter in 1984 to every living alum of the college expressing it's discriminatory views, that Princeton's president responded with a similar letter, and that this exchange was covered in the Wall Street Journal. Apparently Judge Alito wasn't reading his mail or the paper at the time, because he claimed not to remember any of this.

After this exchange, Senator Kennedy stated his intent to subpoena [some CAP records from the Library of Congress], and asked that the Committee go into closed session to discuss this. Apparently he asked Senator Specter about this in a letter some weeks back, but the Chairman insisted he'd never gotten the letter. A heated exchange ensued, with the result being a visibly angered Chairman saying he would take the request into consideration.

This exchange was just one more instance of what has become the theme of these hearings: Alito is evasive and unwilling to provide a full and satisfactory accounting of his record and his views.

Well, today's questioning marked the beginning of the end. Well at least the end of the first round. Senator Durbin donned the mantle of Senators Feingold and Schumer of trying to get Judge Alito to provide just one moment of honesty, sincerity or frankness in his senate testimony. And despite a valiant effort from the gentleman from Illinois, again Judge Alito again chose stuck to dodges, evade , vagaries and mischaracterizezations. For instance, while admitting that Griswold and Brown are settled law (well at least we know that he's not against contraception and segregation, hallelujah!), like Roe, two decisions not based on the specific language of the constitution, he remained steadfast in his unwillingness to say whether he still believes that the Constitution does not provide for the right to an abortion. Is My god man, is it that hard to give an honest opinion? Is it that hard to say what you think?

Senator Durbin then went on to expose Judge Alito's record of advocating, in dissent, the use of legal technicalities to deny justice to a host of wronged individuals. by: 1) The first instance Senator Durbin cited involved accepting the appropriateness of a jury selection which systematically eliminated all African-American jurors. Alito used a comparison to left handedness versus right handedness in his dissent and stuck by it even as Durbin pointed out how that trivialized the issue. Alito argued that he had to make this argument because of his knowledge of stats. Hey, I remember that stat class from college (How To Misuse Stats 101).

The second example cited a truly disturbing case; 2) denying the right of a mentally retarded, sexually abused individual to bring a workplace harassment case. Because the facts of the case are so shocking, Durbin declined to read them into the record. We've done a fact sheet on the Pirolli case, however, that outlines the allegations and Alito's shocking opinion.

Finally, Durbin revisted his thoughts from the first day of the hearings and discussed, in light of recent tragedies; and 3) denying miners appropriate workplace protections.

These are just three in a long line of cases that shows Alito favoring the powerful over the powerless. Senator Coburn tried to revitalize Alito's image by citing 9 cases where he did not do so. That's 9 against hundreds of instances.

Judge Alito probably heaved a sigh of relief when Schumer's time ended and the floor was turned over to Senator Cornyn for more gentle questioning.

Wisconsin Senator Herb Kohl (Go Bucks!) was the first Dem after lunch. He was curious about why Judge Alito had said he thought Judge Bork was one of the best nominees of the century. Judge Alito said he disagreed with lots of Judge Bork’s positions. We’d really like to know which ones, but Judge Alito didn't tell us.

Kohl also touched on Alito’s professed problems with the right to abortion, but didn’t get an answer. When questioned about his professed problems with the one person one vote doctrine, he said that he actually loved the doctrine, thought it was the best ever. All he disagreed with was how strictly the Warren Court applied the doctrine (requiring almost perfectly equal-sized districts). Strange that he only had such minor concerns about this bedrock voting rights doctrine since he said in his 1985 job application that his disagreement with the Warren Court's reapportionment decisions was one of the reasons he chose to become a lawyer in the first place.

Senator Grassley opened his first round of questioning with an attack on the "extreme liberal groups"—including some that are blogging "right now" and we must say we appreciate the shout out—for pointing out that Judge Alito "didn't remember a promise" he made during his committee hearing for his nomination to the Third Circuit. regarding his willingness to recuse himself from any case involving Yup, we're talking about Vanguard again. Just a quick refresher, Alito had promised to recuse himself from any case involving Vanguard, a company in which he had a significant financial stake and then he ruled on a case involving Vanguard. Oops! Reassuring Judge Alito that forgetting about such a promise was ok, Senator Grassley assured him that he was in good company, noting awkwardly, "If senators kept every word they made to their constituents, there wouldn't be any senators left." Good to know we can count on you to defend the practice of breaking promised, senator.

Senator Biden's "questioning" began by emphasizing how "puzzle[ing]" Judge Alito's record and answers are, puzzling to him and puzzling to the public. One puzzling area was Judge Alito's justification of his membership in Concerned Alumni of Princeton. Senator Biden, if you haven't caught on to the theme yet, was puzzled how Judge Alito's disagreement with ROTC being kicked off campus in the 1960s provided a justification for his bragging, in a 1985 job application, about his membership in the sexist group. It was extra-puzzling, as it were, since Alito could remember why he might have joined but not that he had joined. Also, in 1985 Princeton had restored the ROTC program to campus. Puzzling.

Senator Biden was also you-know-what by Judge Alito's woeful record on employment discrimination cases. Two cases in which Judge Alito's own circuit sharply disagreed with his findings formed the base for the discussion. In one case, Bray, Judge Alito justified a position his colleagues on the court said, if adopted, would "eviscerate" Title VII, by falling back on the old law school favorite "reasonable person" standard. Basically, he concluded that the facts of the case lead to a conclusion that no reasonable juror could find that racial discrimination occurred. Good thing his fellow judges agreed with hi… Oh, that's right. The completely rejected that approach

Where things really got interesting, though, was in a discussion of the Sheridan case.. Judge Alito justified a ruling against a woman who had been systematically discriminated against by her employer as in-line with a later Supreme Court ruling involving similar facts written by Justice O'Connor. As he should have, Senator Biden quickly pushed back on Judge Alito's response, making it clear that while Justice O'Connor may have applied the same standard as Judge Alito, she most certainly would not have come to the same result. Senator Biden pointed out that Justice O'Connor would certainly have come to a different result in Sheridan, blowing Judge Alito's claims that he had the same views on this issue as the justice he wants to replace out of the water.

Senator's Kyl's questioning primarily consisted of prompting Judge Alito to promise that he would never, ever, pretty please, no fingers crossed, employ international law in deciding an issue of constitutional law, which Judge Alito happily did. Senator Kyl continued his questioning after the lunch break with a question that lead to a collective jaw dropping, having nothing to do with the turned crab bisque in the Senate dining room. Asking Judge Alito to comment on his position in the now infamous Rybar "machine gun" case, Judge Alito stated that he felt his position in Rybar was actually a modest position. Whaaa!!? Not only was Judge Alito's position rejected by almost every Circuit in the country, but the only Circuit that agreed with him was shot down by the Supreme Court. Boring though this statement about modesty may sound, this will likely become an issue of serious contention as the proceedings continue, and may qualify as the hearing's first blockbuster.

Things are really getting started today, with Round One of the Judiciary Committee's questioning of Judge Alito. As expected, Chairman Specter got things underway right on time at 9:30, and, after a brief note that we all might be here until late into the night and allowing Senator Leahy a quick intro, got straight into questioning Judge Alito about abortion... to little substantive result. After a few minutes, we'd pretty much heard a whole lot of nothing from Alito.

Judge Alito's responses were decidedly lacking in particulars, and Senator Specter refused to press him further. When asked about whether Roe v. Wade should be overruled, Judge Alito gave stock answers about the importance of stare decisis. Asked if he still believes, as he wrote in his 1985 job application, that "the Constitution does not protect the right to an abortion," Alito said that was an accurate representation of what he believed then, but did NOT say whether or not he believed it now. Since when did this pass for answering questions? Our English teacher in our junior year of high school would have been all over us for this kind of thing, so we're hoping the U.S. Senate won't put up with it from a nominee to our nation's highest court. Senator Specter also moved, as promised, into questions about executive power, but again, the answers were, if we're feeling kind, unenlightening. At best. Some might say "completely attempting to side-step the very issues at hand."

Ranking committee member Leahy took up the exec power line of questioning and pushed harder on the nominee, asking if, in Judge Alito's view, the president has the power to override the law to authorize torture. Alito hemmed and hawed and hedged with talk about Supreme Court precedent and the need specifics about a particular case, blah, blah, blah. What more specifics does he need other than the president is ordering people to be tortured? Torture is torture, Judge Alito.

Senator Leahy, who like Judge Alito is a former prosecutor, also got into Judge Alito's very troubling record of exceeding deference to intrusive uses of government power. This was the first time during questioning that the notorious "strip-search case," Doe v. Groody, was mentioned, (and we're sure to hear more about it). Judge Alito attempted to explain his disturbing dissent – an approach that was even rejected by now-Homeland Security chief and then-Judge Michael Chertoff. Here's the deal. For all of the talk about Alito being someone who will "strictly interpret the law," Doe v. Groody clearly shows his selective reading of the Constitution. In the Groody case, he just decided to ignore the part of the 4th Amendment that lays out the need for "particularly describing" the person or place to be searched in the warrant.

Reasonable people, Judge Alito professed, could disagree as to whether the warrant in that case actually authorized the intrusive search. Judge Chertoff didn't think so and neither did Senator Leahy. Citing his years in law enforcement, the senior senator from Vermont stated sternly, "I don't know of any reasonable officer in those circumstances who would find that search reasonable." We agree. For the full rundown on the Groody case and why it is so troubling and important, please see our handy fact sheet.

Senator Leahy finished off his first round of questions by asking Judge Alito why the heck he joined a group – the Concerned Alumni of Princeton, or CAP – that was anti-minority and anti-woman, and then flacked his membership in 1985 job application. Here we got a bit of insight into the latest set of talking points for the Republican senators (following up on the preview we got yesterday during opening statements). Apparently they'd been briefed on the new rationale for Judge Alito's membership. See, it just so happens that in his judiciary committee questionnaire, Alito said he had no recollection of joining the group... and he still doesn't, BUT he thinks that the only reason he joined was that the way Princeton treated the ROTC had "rankled" him quite a lot. Wow. He can't remember being a member of the group, but he can remember why he joined? That's a new and different approach, and just about as satisfying as New Coke. (Are we dating ourselves? We don't care. New Coke was an abomination.)

Senator Hatch was up next, and lobbed his usual round of softballs, trying to prop up Alito's membership in CAP and trying to launch a pre-emptive strike on the issue of ethics and recusal from cases involving his investments in Vanguard funds. Thing is, as Senator Kennedy noted next, Judge Alito promised to the Judiciary Committee in 1990, under oath, that he'd recuse himself from cases involving Vanguard. This goes beyond judicial ethics rules, it speaks to something far more basic: a promise ... someone's word of honor. And Judge Alito didn't keep his promise to the Judiciary Committee and there is no explaining that away. Judge Alito said that he should have handled it differently, but the fact is, he didn't.

Following Senator Kennedy's sharp questioning about the Vanguard promise, he questioned Judge Alito about a statement he once made arguing that the elected branches are supreme to the judiciary. Response: that was an "inapt phrase," but Judge Alito hasn't changed his mind... Well, that's comforting. Continuing on the issue of deference to government authority, where Judge Alito's record is decidedly slanted against individuals, Senator Kennedy asked about an excessive force case where Judge Alito's colleague called the search "Gestapo-like," Judge Alito reiterated that he thought the jury's judgment was rightly rejected. So we have an approval for excessive force as well as inappropriate searches. Good to know we have such a staunch defender of 4th Amendment rights in Judge Alito. Oh, wait... Never mind. Kennedy then entered into the record several independent reports highlighting Judge Alito's extreme deference to government authority.

Finally, Senator Kennedy asked Judge Alito if he still believes his statement that "the President's approval [of a bill] is just as important as that of the House or Senate, it seems to follow that the President's understanding of the bill should be just as important as that of Congress." Judge Alito's response was—prepare for a shock—completely unresponsive. He talked about his method of reading statutes, but did NOT say anything about whether he believed – then or now – that president can change laws passed by Congress just by saying what he thinks it is ... just like President Bush did last week when he gutted the McCain Amendment banning torture. As he told Senator Leahy earlier, Alito said the memo was a draft and was written for a working group, but gave no indication of his position on this extremely troubling view of presidential signing statements.

So, up to this point, all we are left with is an unresponsive witness and a fifteen year judicial record of troubling decisions when it comes to protecting individual rights and the interests of the American people.

The afternoon actually ended ahead of schedule, with Judge Alito getting his chance to say “I will,� and give a statement pledging his undying dedication. Okay, so it wasn’t a wedding, but Judge Alito did get sworn in and then gave his opening statement, affirming his dedication the rule of law. BUT FIRST, he had to wait a few minutes for formal introductions by his home state representatives (Jersey represent!), Senator Frank Lautenberg and former governor Christine Todd Whitman. (New Jersey’s other senator, Jon Corzine, won’t be around to vote on Alito since he is being sworn in as Jersey’s next governor on January 17, but he did submit a statement for the record). Senator Lautenberg said some nice things about Judge Alito’s family and upbringing, but didn’t take the bait when Senator Specter asked if he’d “care to make a recommendation on the nominee.� Ms. Whitman, however gave her endorsement of the nominee.

After some pretty bad jokes equating the number of photographers in the room to the number of senators needed to approve a nominee as senators stalled for time to get the cameras in position, the photogs got their shot and Chairman Specter administered the oath and invited Judge Alito to deliver an opening statement.

Judge Alito’s statement, like much of the day’s comments, consisted of primarily snooze, with only a nugget or two of news. After dispensing with the initial thank yous and a failed attempt at humor (with a punch line that included references to I-95 and Amtrak, two notably unfunny topics), Judge Alito took senators through his life story. Asserting his blue collar bona fides, he discussed the rags to riches story of his immigrant parents and his rise from an “unpretentious, down-to-earth� New Jersey community, to the halls of academic excellence at Princeton and Yale Law School. In a shot at his collegiate peers, Judge Alito explained that he “saw some very smart people and very privileged people behaving irresponsibly.�

Remarking on his legal career, interestingly, Judge Alito paid short shrift to his time at the Department of Justice, merely stated that it was an honor it was to have the United States as his first and only client. However, Judge Alito used his discussion of his judicial career as an opportunity to launch a pre-emptive attack on likely Democratic senatorial criticisms. Addressing judicial activism, Judge Alito asserted that he had no agenda as a judge other than to carry out the dictates of the “rule of law.� On deference to the executive branch, he reiterated a point raised earlier by Senator Leahy that, “[n]o person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.�

Given the opening statements from Chairman Specter and all of the Democrats, expect him to be pushed on each of these assertions tomorrow—that he was representing the United States and not pushing a legal agenda when he argued against Roe v. Wade, affirmative action and other important legal doctrines in the justice department, that he consistently follows the rule of law as a judge, and that his record does not show excess deference to the executive branch at a time when the president is asserting breathtaking powers as detailed in the AFJ report.

So, we’ve heard from all the Senators now. Only Alito’s opening statement is left.

Senator Graham was the first to drop the “f�-bomb,telling Democratic senators not to filibuster over Roe v. Wade. In what has become a familiar refrain, Senator Graham harped on process and reminded Democratic senators to “know their role.� To channel our playground self, takes one to know one, Senator Graham. Following up on the Wall Street Journal article we mentioned in the previous post, Senator Graham might want to reassess his own role: the Constitution says senators should provide “advice and consent� to the president on judicial nominations. In Graham’s case, that apparently includes prepping the nominee for his hearing, which sounds like a bit more than the “advice� the Framers had in mind.

Graham also used the “L� word (no, not the drama from Showtime): “litmus test� He argued that although Roe, or more precisely Casey, is foremost on many people’s minds, senators should consider Judge Alito’s entire record rather than relying on a one or two case litmus test. Considering the other senators talked about presidential power, 4th amendment rights, civil rights, workers’ rights and all of the other things that are cause for major concern in Alito’s record, we don’t think Senator Graham has to worry too much on that score.

Senator Schumer brought things back to earth for a few minutes, asserting that it is Judge Alito who has the burden of proof to show that he deserves a lifetime appointment on the Supreme Court over the course of the hearing. Schumer echoed one of the common themes of the afternoon: the fact that Alito has been nominated to replace the Court’s most frequent swing voter. He also gave his own take on the so-called “Ginsburg standard,� noting that Justice Ginsburg answered questions on issues on which she had written or commented. Turns out, Judge Alito has written and said quite a bit when it comes to hot-button issues like the power of the president, abortion, and voting rights, so we should get a lot of answers, right? We’d better. I guess we’ll see tomorrow…

In a shout-out to the failed Harriet Miers nomination that was torpedoed by the same members of the radical right that are acting as Judge Alito’s cheerleaders, Schumer chastised the “the cadre of conservative critics that demanded answers from her and then rolled out the red carpet for Judge Alito.� Schumer wants to know why that’s the case, and so do we.

Demonstrating that he attends the very same séances as Justice Scalia, Senator Cornyn channeled the spirits of the founding fathers telling us all that the “founding fathers believe people of faith should be allowed to express their beliefs… .� Senator Cornyn charged that “a number of groups really don’t want a fair-minded judge,� that they want “traditional marriage� to be found unconstitutional and that they want to “ban any religious expression from the public square.� Who are these groups? Could Senator Cornyn send us a list, because we’d really like to know?

Senator Dick Durbin’s theme for the hearing was this: Would Judge Alito use his powers to restrict freedom or expand it? Durbin characterized Alito’s choice as follows: would he continue the legacy of rights and freedoms, or would he sign off on gag rules on doctors regarding family planning, interference into family decisions regarding life support, efforts by the government to tap our phones and invade our medical records, or (surprise, surprise) rules that would come between a woman, her doctor and her conscience on the decision of whether to have an abortion. Durbin charged that we as a society have gone too far in curbing individual rights and urged that the Supreme Court is the backstop for these rights (okay, we added the gratuitous baseball reference—we’ll try to make sure it doesn’t happen again).

Durbin urged Alito to explain his views on reapportionment and involvement in the Conservative Alumni of Princeton (newly recollected it seems as a stand against ROTC? more on that later, to be sure).

In a grim moment that really showed the sort of impact decisions judges make on every aspect of our daily lives, Senator Durbin reminded us of a dissent Judge Alito wrote which would have limited the reach of a law that protects the health and safety of coal miners. (Our report includes a background on the case in question.)

In a shocking development, Senator Brownback used most of his time to recycle the same attack on a woman’s right to choose that he had used at the Roberts hearing. Couldn’t he have come up with some new lines in the intervening four months? Senator Brownback, clearly in favor of sports references, added this one to the list: “Only two more pitchers then you get to bat.�

We’d suspect that Brownback’s list of four cases where Judge Alito voted for civil rights, like Senator Jeff Sessions’ list, uses a very loose definition of what a “discrimination� case really is. Unfortunately, we’ll have to wait for the official transcript to come out weeks from now, since Brownback inserted his list into the record but didn’t bother to tell us what the contents of the list was.

Senator Coburn, an MD, followed Senator Brownback, continued his diatribe on the right to choose, or as he put it the “right to choose to kill� or the “ripping and tearing of an unborn child from its mothers womb.� He followed this with an equally polemic diatribe on the “right to take your own life,� and left us all with this thought-provoking question “how is it that we have sodomy protected under due process but not prostitution?� His medical diagnosis: “Its schizophrenic.� In case we had yet to figure it out, Coburn tipped his hand, telling us that “the real debate is about Roe.� If you’ve listened to our podcasts, you now know why we dubbed Brownback and Sessions the abortion twosome.

Well, the hearings have gotten started and while it hasn't been what we'd call "rockin'" there have been some interesting moments in between the self-congratulatory and bombastic speeches (Senator Sessions, we're looking in your direction.) Up until now, we've heard from 12 senators, so only 6 more speeches to go.

Chairman Specter kicked things off by inviting Judge Alito to introduce his family. That's the last time he'll have a chance to talk for the next several hours. Do you suppose practicing an "interested, I'm listening" face is part of the murder board process? It should be.

We found out in the gripping administrative portion of the session that Senator Specter intends for the hearings to conclude this week with a committee vote on Tuesday the 17th, "subject to something extraordinary happening." Specter then followed by laying out the structure of the hearings: 1) Today, each senator will have 10 minutes for opening statements, followed by the formal introduction of the nominee by his home state Senator, Frank Lautenberg and former NJ Governor (and current EPA Administrator) Christine Todd Whitman, and Judge Alito's opening statement; 2) Questioning will begin tomorrow morning with Round 1 of questioning – 30 minutes per Senator – and Round 2 – 20 minutes apiece – will follow, with 15 minute breaks at "convenient times; 3) Specter intends for the hearings to conclude this week, with a committee vote on Tuesday, Jan. 17, "subject to something extraordinary happening." With that and a brief word from ranking committee member Patrick Leahy of Vermont, things got moving.

But onto the real fun—the senators' 10 minute opening statements. Senator Specter laid out his concerns (sadly sans the word "super-duper" or a big blue chart): executive power in light of recent revelations about domestic spying by the Bush administration, abortion, and respect for congressional decision-making. Nearly every senator on both sides of the aisle also noted the importance of Judge Alito's deference to executive power, several noting Justice O'Connor's statement "a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens," in a 2004 opinion rejecting the president's assertion of a right to detain American citizens.

Chairman Specter also described the interchange between the senators and the nominee in the hearings as "a subtle minuet." Senator Biden took a liking to the metaphor, indicating that classical music may replace baseball as the central metaphor for these hearings. We certainly hope so.

You may have heard a few words about Judge Alito's 1985 job application. You know, the one in which he expressed disagreement with the Supreme Court's holdings enshrining the principle of one person one vote, and expressed pride in his work fighting against abortion rights. This was cited by many senators as a cause for concern. Senator Kennedy, in particular, is "deeply troubled." As are we, Senator Kennedy, as are we.

Senator Grassley got the first laugh of the day on the heels of Senator Kennedy's expression of "deep concerns" about Alito's record, beginning his comments with the "quip" "I have a more positive view of Judge Alito." It's a Judiciary Committee hearing, not a night at the Improv. Or even the Capitol Steps. We have to take what we can get when it comes to humor.

Also expressing serious concern with Judge Alito's dedication to the protection of Americans' individual rights were Senators Leahy, Biden, Kohl, Feinstein, and Feingold. Senator Kohl summed it up in two key quotes: "Before we give you the keys to the car, we'd like to know where you're going to take us," and, on the importance of a judge's awareness that his or her rulings affect the lives of real people, "justice may be blind, but [long pause for sip of water—hey, we aim to be accurate] it should not be deaf."

Senator Sessions, noting his own adulation of our nation's founding document, previewed his questioning by saying that he intends to inquire as to whether Judge Alito loves the Constitution. I think they sell t-shirts to that effect at the National Archives and we totally want one. Seriously. Senator Sessions also cited a criminal procedure case to "rebut" Senator Kennedy's correct observation that Judge Alito has not written an opinion in favor of a plaintiff in a race discrimination case. Whoops. I wonder why he wasn't confirmed to the bench back in the 80s... Huh. Weird.

There is one other interesting thing we'd like to note. In his opening statement, Senator Hatch said that the "first principle" in judicial selection is that "the Senate and the president have different roles." Apparently Senator Graham didn't get that memo. Oops. According to today's Wall Street Journal (sorry, we'd link, but a paid subscription is required), Senator Lindsay Graham participated in a prep session for Judge Alito at the White House last Thursday. First principles can be such a pain.

It’s finally here! The day we’re sure all of you have been waiting for. Day One of Judge Samuel Alito’s Judiciary Committee hearings gets underway today in the Hart Senate Office Building, just a few blocks from One First Street. The hearings begin at noon (EST), and are scheduled to go at least through Thursday. You can view today’s schedule here. We’ll be with you every step of the way (and yes, we have lives, they just will be revolving around this for the time being), monitoring the hearings from gavel to gavel and providing regular updates with breaking news and observations. You can catch the hearings live on C-SPAN.

A quick news update before we get started: Senators hit the airwaves yesterday in a spate of Sunday news show appearances, making it clear that the stakes are extremely high and that Judge Alito’s writings and rulings place a heavy burden on his confirmation. Senator Kennedy laid it all out in a Friday op-ed in the Washington Post and we’ll be hearing from him again today, as well as all the other members of the Judiciary Committee.. All 18 of them. Today is prepared remarks—including the headliner himself with an opening statement—but the real fun gets underway tomorrow when the questioning of Alito begins. Stay tuned. We’ll have more for you after the first break.

This is why more than 500 law professors around the country have signed on to a letter opposing the confirmation of Samuel Alito. You can check out the letter and signatures here.

We know, lots of reading material today. But it's all an excellent primer on what is going to come since the fun gets underway on Monday with the start of the Alito hearings.

Like just about everyone else, we've decided to make a New Year's Resolution. While it should probably have something to do with eating more vegetables or watching fewer reality shows, that doesn't sound very fun. So, we've opted instead to be much better about blogging. (And with the Alito hearings starting in less than a week, we have good reason to stick to our resolution.)

Starting tomorrow, we'll have all sorts of up-to-the minute (or at least up-to-the-day) information for you, though we cannot promise there won't be random references to not-quite-ready-for-C-SPAN programming. Happy New Year!

We know. It’s been forever. We’ve just been so busy lately. And yes, we hate that excuse, too, but when we say "it’s not you, it’s us," we really mean it! (And we totally meant to call, too.) As you’ve no doubt noted, quite a bit has transpired since last week.

The biggest news has swirled around the disclosure of a 1985 Justice Department job application in which the young Alito expressed great affection for the Reagan administration’s work to roll back a virtual cornucopia (getting in the Thanksgiving spirit here) of rights and protections – efforts he had been a part of as a lawyer in the Solicitor General's office. Alito wrote that he was "extremely proud" to have worked on recent efforts against affirmative action and women's reproductive choice, and shared his belief that "the constitution does not protect a right to an abortion." Judge Alito moved quickly to try and temper the serious concerns raised by this document, telling Senators he was just trying to get a job, and that those clearly expressed views really don’t matter today. While we certainly understand the need for gainful employment, it strikes us as a little more than odd that the judge would suggest that he wasn’t being entirely straight with the DOJ. More strikingly, as it turns out, Alito’s judicial record tracks very comfortably with the statements he made in the application, as we’ve outlined in this handy document. And... Ads ads ads! So, what are we doing about all this? Today, Alliance for Justice and our partners in IndependentCourt.org are launching a nationwide campaign to raise awareness and opposition to President Bush’s nomination of Judge Alito. In addition to events being held around the country, we've also launched this ad highlighting the major areas of concern in Alito’s record. Check out the ad and more information here.

Nominated by President Bush to replace moderately conservative Justice Sandra Day O’Connor, Third Circuit Judge Samuel Alito has a 15-year record of trying to push the law sharply to the right. He is what the Right calls a "movement" judge.

Okay, I admit it's late... but, if you missed it on Friday at the main page, here's the latest Insider Scoop:

So, the Gang of 14 met yesterday. And while it sounds like something out of Alias, it is a bit more prosaic than that. Though still important. At their meeting, they determined that they were "united" and "withholding judgment." A couple of gang members senators (DeWine and Graham) have made remarks about voting to go nuclear should things get to that point, but their support for the nuclear option was never a question in the first place, no matter how many gangs they did or did not join, so it doesn't exactly fall into the "stunning revelation" category.

More interestingly (to us, anyway, since it plays into our winter travel plans. Looks like St. Tropez in January is out.), a hearing date has been set. The party begins January 9th. It will continue throughout the week, with an exec (executive session/Judiciary Committee vote - we like shortened words, acronyms and near-incomprehensible jargon in this town) scheduled for the 17th of January. We also think it is fun that the Judiciary Committee will vote on the nomination that would de-diversify the Supreme Court the day after we observe Martin Luther King Junior day. It's a little too ironic, don't you think? (And despite that line, not even in the Alanis Morisette kind of way.)

Finally, we have to belabor a point. Something we never do, of course. And certainly never this point. An article ran in the New York Times today talking about how philosophy is at play in this nomination. Yes. Yes it is. Why? Because philosophy matters.

Apparently, we are starting a special expose series, and we didn’t even plan it. Well, if people just keep handing us the material, we have to run with it. So, we here at the Scoop bring you another installment of our hard-hitting series on cracking the code used by the the radical right. (We sort of wish we had some sort of dramatic music, or perhaps John Stossel or Stone Phillips to narrate, but we’ll have to make do with the limitations of our format. It’s probably for the best.)

So, on this edition of Codebreakers (yes, we know, weak title—we may have been watching a bit too much of the History Channel lately. Work with us here), we’re covering the idea of dignity. Hey, we like dignity, even if we end up sacrificing it a bit every now and again due to our charming clumsiness. But certain members of the Senate *coughMitchMcConnellcough* have taken to throwing around the word “dignified� when it comes to the hearings process. It was said a lot during the Roberts hearings as well. Funny thing about the use of their use of the word “dignified.� We’re going to have to borrow from/paraphrase Inigo Montoya here: we do not think that word means what you think it means. Because when the right starts making pronouncements about a “dignified� hearing process, what they actually mean is “non-substantive� and “rushed.� These are not good qualities in a hearing. And they certainly aren’t synonyms for “dignity� no matter what some people try and tell us.

The Senate Democrats, perhaps as part of their Cosmo “bold and sassy!� makeover of late, are pushing for hearings in 2006, rather than rushing Judge Alito through the process to get him on the Court by sometime in December. This is exactly what needs to happen—a thorough and substantive process that examines issues and allows both the Senate and the American people time to really understand Judge Alito and his judicial philosophy. And when we say “thorough� we mean a close examination of his record, his legal views and judicial philosophy. Pushing Alito through the process without having him provide substantive answers isn’t “dignified� it’s irresponsible.

So, onto the nomination! President Bush announced his nomination of Samuel Alito of the Third Circuit Court of Appeals to the Supreme Court yesterday morning. Ahh, there’s nothing like the satisfying feeling of completely caving to the fringe elements of your base. Because the radical right loves Samuel Alito. He is everything that Harriet Miers was not - a guarantee that the balance of our nation’s court will be tipped far to the right in pursuit of an ideological agenda. Funnily enough, we can say the same thing about Samuel Alito that people sometimes say about us: he’s no Sandra Day O'Connor.

But Bush said Alito will show "judicial restraint." Yeah, that’s one of those fun code words like "strict constructionist" that sounds good, but pretty much means that the person is a conservative activist with an ideological agenda. Fun, huh? Code words are always great. Without them, they won’t let you into the Federalist Society Clubhouse. (We think they came up with some extra code words like "constitutionalist" so they could waive the secret knock.)

And yes, we have reasons for saying this. Reasons like Alito's attempt to rescind Congress' authority to ban machine guns. (Maybe he’s a Rambo fan?) Or his disregard for the Supreme Court’s decision on spousal notification in his decision to allow such a provision in a New Jersey statute. Or the time he approved the strip search of a mother and her ten-year-old daughter by police, despite the search warrant not naming them or authorizing the search.

So, of course, the papers are abuzz with all of the comments and reactions and possible outcomes of this nomination, but the real heart of the story is this: while Judge Alito may have the on-paper qualifications, his judicial philosophy falls far short of the requirements needed of a Supreme Court justice. He will not stand up for the rights and freedoms of the American people. He was not selected to be a justice for every American, he was selected to be a justice for Phyllis Schlafly and James Fund and all of the other uber-conservatives who pitched a fit over the Miers nomination and didn’t even allow her the courtesy of a hearing. (What was that tired old refrain about the supposed mistreatment of Robert Bork again?) Alliance for Justice has opposed this nomination because we've looked at his extensive judicial record and found it wanting.

Sorry to end on such a serious note. We’ll try and do better next time. In the meantime, don’t forget to check out our preliminary report on Judge Alito.

Now we in Washington get to start playing our favorite game again—Speculation! (Well, we’ve been playing it for weeks on a number of matters, but now we’re playing Speculation: Supreme Court edition again.) Speculation is played in a similar manner to a high school journalism seminar exercise: Who? What? When? (The "Where" and the "How" play into it depending on the situation.)

We would like, at this time, to give credit to our editor. As we waited and waited for her questionnaire to come in, he predicted "She's not going to turn it in because she’s going to withdraw. You heard it here first." Well played, Editor. Well played, indeed.

So, onto the news as promised. First of all, Reuters (via The Washington Post in this link) is reporting that the Miers hearings will start on November 7. This makes sense, especially given Senator Frist's vow to adjourn this session of Congress by Thanksgiving. Of course, it makes less sense in terms of giving senators and the American people more time to learn more about Harriet Miers, but her public record is pretty slim, so the hearings will be our best shot to find out something. Or so we hope. If Miers fully answers questions. Hopefully she doesn't follow the precedent she set for herself on her Judiciary Committee questionnaire. Miers was asked (see question 17) what specific constitutional issues she has worked on during her time at the White House and her answer was crystal clear (and we paraphrase here): "I've worked on lots of issues. Moving on!" Oh, well, that clears it right up then.

Alliance for Justice has sent a letter to Senators Specter and Leahy reiterating the need for the Judiciary Committee to conduct thorough hearings and ask Miers substantive questions -- and demand substantive answers -- about the issues she has addressed during her time at the White House.

There was also an upsetting backtrack from Ms. Miers after her meeting with Senator Specter. The senator had reported that when he asked Miers about her views on two key cases on the constitutional right to privacy -- one of which, Griswold v. Connecticut, even Chief Justice John "I can't comment on that case" Roberts openly agreed was settled law -- she told him that she believed the cases were correctly decided. Hey! A definitive answer that gives some insight into her legal views. That's wonderf... Oh, wait. Never mind. She called the senator and said her remarks had been "misinterpreted." We should have known it was too good to be true.

So, that's the report for this morning. There's more for you, but since we're meaner than JJ Abrams* (and clearly more entertaining--Les Moonves is trying to broker a deal with us right now, in fact), we're going to leave you with a cliffhanger and get back to you when we have more solid information to report.

*We got some push-back from our pop-culture-illiterate editor on this one. For any other television philistines out there who don't feel like following the link, JJ Abrams is the creator of both Lost and Alias and master of the "What the...?" cliffhanger. Well, not so much on Alias this season, but we don't like to talk about that.

When we were little, we always really enjoyed the movie Alice in Wonderland. It was one of the first videos we owned, along with Winnie-the-Pooh and a Strawberry Shortcake number. Ah, the early ’80s. But we are not here to talk about our childhoods spent growing up in the early ’80s—sorry Freud and VH1—we are here to talk about the Miers nomination. And one thought that arises, courtesy of Lewis Carroll (yes, we DID eventually read the books), is “curiouser and curiouser.� It’s been an odd week.

The right-wing is divided against itself for the first time in… Well, perhaps since we were happily watching that Alice in Wonderland video. And all because of Harriet Miers. Many are concerned that she won’t drive their radical revolution on our nation’s highest court because she doesn’t have the conservative track-record of, say, a Priscilla Owen. So, the Bush administration has begun a charm campaign aimed at the right wing. The thing is, it’s not going quite as well as they might have hoped (even normally staunch Bush supporters like Senator Brownback are expressing reservations and some, like William Kristol of the Weekly Standard, outright opposition). And their charm campaign isn’t really all that reassuring to us, since it seems to be focused on off-the-record conversations and special treatment of certain people rather than a transparent and inclusive process. We think that Patrick Leahy should get to know just as much as James Dobson, not to mention the millions of Americans Leahy and other senators represent.

We’re also not particularly thrilled with some of the comments the reassurances are engendering. They certainly don’t make us think “Wow, check out THAT judicial independence.� We’ve heard a lot about her loyalty to the president and the way he thinks, and not anything concrete about her views and outlook. And that’s what we, the Senate, and the American people really need to know. For a look at exactly what the Bush administration has been up to in trying to sell Miers’ nomination, click here.

* * *

PODCAST UPDATE... we'll have a show for you later today on the Miers nomination. Stay tuned!

Earlier today John Roberts was confirmed as the nation's 17th chief justice. He is to be sworn in around 3:00 this afternoon. We here at Alliance for Justice are simply stunned, if stunned can be defined as "knowingly expectant," at any rate. We are disappointed, certainly, but not exactly surprised given the commentary of the last few days. We would, however, like to take notice of the 22 senators who cast principled "no" votes on this nomination.

But we here at the Scoop don’t want to dwell. The president will shortly be announcing his next nominee to fill the shoes of Justice O’Connor. We know the nominee will be conservative, we just hope that the nominee will be a pragmatic conservative in the mold of O’Connor. Oh, if only hoping would make it so... We have to say that some of the names that have been floated are a little scary (*cough* Priscilla Owen and Janice Rogers Brown *cough*). If the president chooses to reject consensus and nominate an ideologue who will tip the balance of the Supreme Court, we are prepared to stand up for the fairness and independence of our courts.

Not to brag about our test scores, but some of us did extremely well on the reading-comprehension section of the Iowa Basics. (How do you think we attained the glamour and status we hold today as an anonymous blogger?) Some Republican senators, however, may want to brush up on their reading and listening skills before making speeches.

Senator Specter noted that “[Roberts] said the decision of the Supreme Court of the United States in Griswold v. Connecticut was a correct decision and he extended the contraception issue beyond marriage to those who were single, saying that right of privacy existed, and upheld the propriety of the decision of the Supreme Court in the Eisenstadt case. Other nominees had refused to answer such questions.

Senator Snowe said that “specifically, he testified that he ``agree[d] with the Griswold Court's conclusion that marital privacy extends to contraception'' and agreed with the later Eisenstadt decision that confirmed this right for unmarried couples as well.

Hey, we sense a theme! Looks like the Republicans have some talking points on John Roberts. That’s great, really, except for the part where Roberts didn’t say or do anything of the kind when it comes to Eisenstadt. (This is the case that extended Griswold—it said that unmarried persons also have a right to contraception.)

According to these factually-questionable-at-best Republican talking points, Roberts agrees with the Eisenstadt decision. Except he doesn’t necessarily—he never said such a thing. He said he has “no quarrel� with it, as he did with a number of other Court decisions including Plyler v. Doe, Franklin v. Gwinnett County (where the Supreme Court rejected Roberts’ own legal reasoning 9-0) and other important decisions. By applying our approved-by-the-Iowa-Basics reading comprehension skills to Roberts’ own written responses to questions posed by Senator Schumer, we discovered that Roberts only acknowledges the decision as a precedent of the Court. Nothing more. This is not the same thing as affirming the decision itself. This is a key distinction. It does not mean he accepts the reasoning of Eisenstadt. (For more on the “no quarrel� quandary, please check out this helpful discussion from the National Women’s Law Center.)

But you don’t have to take our word for it… (We HAD to do the Reading Rainbow shout-out given the reading comprehension issues highlighted in this entry. We’re pretty sure we have LeVar Burton to thank for our aforementioned Iowa Basics scores.) You probably should, though, since the words of these senators aren’t exactly packed with accurate information.

Okay, lots going on. Senator Harry Reid declared his opposition to John Roberts’ nomination, as did a number of other prominent senators. Unfortunately, a majority of the members of the Judiciary Committee did not take the same critical view of Roberts’ record on rights and protections. His nomination will now move to floor for a vote sometime next week, perhaps as early as the 27th, though more likely it will be a bit later in the week.

Meanwhile, Washington is playing its favorite game: Speculation! (Trivial Pursuit is second, followed by pub trivia. Hey, we’re that kind of town.) There are lots of names (some of them more than a little scary) floating about town, as well as continued discussion of the gender and ethnicity of the next nominee. An announcement could come on the heels of the full Senate vote on Roberts, though that is again from Speculation! (nowhere near as reliable as Trivial Pursuit). We hope that the White House will take some time and work with senators on both sides of the aisle in a meaningful way. Since Justice O’Connor has said she will not retire until the confirmation of her successor, there’s no need to rush the process.

Okay, our hopefully-still-loyal readers, we are still experiencing some… hiccups, but we think we've come up with a workaround. Posting may not be as speedy, but it will happen. We know we fell behind, so we decided to challenge ourselves: could we sum up each senator's portion of questioning that we didn't cover yesterday in 100 150 an average of 165 words or less? Let's find out:

Senator Schumer ended the day with some additional questioning. He told Roberts that nobody wanted tailored answers, but that answers in general might be nice. He also asked where Roberts felt he fell on the ideological spectrum (Rehnquist was asked the same question when he was nominated to be chief justice and answered). Roberts didn't really answer. We barely recovered from the shock of that ourselves. Sometimes he votes one way, sometime another. He wouldn't even commit to being a moderate. We've heard that commitment can be scary before, but we've never really bought it.

In her follow-up round of questions, Senator Feinstein also tried to get a better sense of Roberts as a person, and how he keeps connected to the concerns of every day Americans. Apparently he attends soccer games. (Given our comments on sports metaphors, we're pretty sure it will surprise none of you when we say some of us here at the Scoop do not share that predilection.) We still really didn't get a feel for who Roberts is as a person at all, but considering he's barely giving us a handle on his judicial philosophy, that's not surprising.

Senator Durbin for Illinois tried to get at who Roberts is, and if he has any connection to the concerns of ordinary Americans. He asked if Roberts "[could] see the people people behind the precedents, the families behind the footnotes?" (Does using senators' words count against our word count? I guess if this is a real challenge, yes.)

Durbin also raised the point that Hispanic groups, including the League of United Latin American Citizens, are opposing Roberts' nomination (this is the first time that group has ever taken a position on a Supreme Court nominee). This has a lot to do with writings Roberts had on the Plyler case—he advocated a position that would have denied an education to the children of illegal immigrants. (Whom he delightfully referred to as "illegal amigos," but we've already commented that Judge Roberts may need to work on his comedy routine a bit.) We're getting tired of typing "he declined to give a real answer," but that's what he did, so we'll faithfully report it. Frankly, we're hoping for a Senate Judiciary Committee kick-line number, but so far, no luck. We're still watching, though! (They already pretty much have the matching outfits.)

We certainly learned a lot with Senator Schumer's questioning: John Roberts likes old movies: Dr. Zhivago and North by Northwest. We're split on this. North by Northwest? Great, really informative. (Since we know you care, we didn't love Dr. Zhivago so much, even though when some of us were teenage girls we were apparently supposed to. We also thought Love Story was obnoxious, so we have our own set of standards.)

But this is a hearing for the chief justice of the United States, not Inside Sundance. One extremely provocative thing arose out of Schumer's questioning: the senator asked Judge Roberts about the Thomas hearings. During his hearings, Clarence Thomas told the Senate that he believed in the right to privacy. His opinions on the bench have completely belied that. Schumer pressed Roberts, trying to get him to say he wouldn't go the same route Thomas did. Roberts was unable to offer us any real reassurances. We have to admit this is a little nerve-wracking: we've seen what Thomas has written on the Court, which completely contradicts his testimony about the right to privacy. With no real reassurance that Roberts won't act the same way, how can we really be certain he believes in and will uphold the right to privacy?

Senator Lindsay Graham began his latest round of "questioning" with damage control on allegations that Roberts unethically failed to recuse himself from the Hamdan case. Graham's approach certainly took a different tack—and viewpoint—than did Senator Feingold. He introduced law professors' statements into the record and threw Roberts yet another softball on the implications of holding him accountable for his alleged conflict of interest.

Graham used most of his remaining time to hold court on his own views on enemy combatants and to advertise legislation he intends to introduce – strengthening the president's hand in interrogation, indefinite detention and punishment outside the regular legal channels for non-state enemy combatants.

The senator also took a moment to castigate the 9th Circuit for "declaring war on religion" – erroneously attributing to the circuit court a decision actually made by a judge on the Eastern District of California, which declared that the Pledge of Allegiance's reference to one nation "under God" violates school children's right to be "free from a coercive requirement to affirm God." He is the second Republican senator to jump on this as a rallying point, despite Roberts' inability to answer because it could come before the Supreme Court.

Senator Feingold came back to the Hamdan case. There was an ethical issue at question here: Judge Roberts heard a case about a detainee in which the president was the defendant and the attorney general advised the president on the challenged policy. At the same time Roberts was considering the case, he was interviewing with the attorney general and the White House in anticipation of a nomination to the Court. Senator Feingold, always very attuned to ethical issues, tried to get some answers and was one of the few senators to visibly shake Roberts' impressive composure. Feingold asked a series of questions about when Roberts was interviewing with the White House and when Hamdan was being discussed.

Feingold also covered death penalty issues, though Roberts again retreated from providing any sort of substantive response behind "could come before the court" and an explanation of what the written opinions said, rather than his actual thoughts on the matter.

There’s not much to say because Sessions barely allowed Roberts to speak. An unscientific assessment leads us to think that 97.3% of Sessions’ questioning was taken up be Sessions himself. (He already had his hearing to be a federal judge, we found out what he thinks, which might be why he’s a senator now, rather than a judge.) There was a total newsflash though: this country has a deficit. Without these hearings, we’d never have known. Thanks, Senator Sessions! We’ve been ignoring newspapers, television and general conversation for the past few years.)

He did bring up the just-decided Pledge of Allegiance case (by a California district court). (Seriously, moments ago.) Sessions, maybe worried that if Roberts said something about the case, he wouldn't be able to decide the case (like Scalia did the last time the case came before him), directed Roberts not to answer any questions about the issue. So, nothing illuminating or even related to questioning Roberts there. (3:20)

Again, Senator Dianne Feinstein just provided some dramatic moments in today’s “Round II.� In one of the most personal exchanges of the week, she brought up her own experiences with difficult end-of-life issues and asked Roberts whether he himself would want the government making such personal decisions for him. Judge Roberts replied that it’s a very difficult thing to conceptualize until one is in the situation, but seemed to agree that he wouldn’t want the government to decide on his behalf.

Feinstein also said that she detected a change in Roberts’ openness over the course of yesterday’s questioning, and asked whether anyone cautioned him to be less forthcoming during lunch, which Roberts denied. (To our dismay, she didn’t ask him what he’d had for lunch, and whether that affected his afternoon at all.)

Feinstein also covered some new ground on the executive power front, asking Roberts about treaties and their status as the “supreme law of the land.� Roberts agreed that treaties do have “law of the land� status, and said that as a general matter, a president cannot decide to violate a treaty. Feinstein also revisited the areas of right to privacy and federalism, but didn’t elicit much new material from the nominee. (3:13)

We weren’t particularly taken with anything in Senator DeWine’s questioning period. There was a nifty little overview of how administrative agencies work (again, not that this told us anything about what Judge Roberts might possibly think about anything) and how it applies to the idea behind the three branches of government. Roberts even referenced high school civics lessons. We wish he would have gone the 3-Ring Circus Schoolhouse Rock route, not because we’re obsessed with Schoolhouse Rock or anything, though.

Senator Herb Kohl is largely viewed as one of the more unassuming members of the Judiciary Committee. (It’s the Midwestern humility, perhaps.) But in the second round of questions, Senator Kohl boldly went where no senator had gone before… He brought up the elephant in the room: Bush v. Gore. You may remember that. Something about hanging chads and unfortunate make-up choices. Not to mention the appointing of a president by a 5-4 majority split along party-appointed lines.

After Kohl’s initial question (Should the Court have asserted itself into an election in such a fashion?), Roberts actually gave a real answer. He said that the court should have because of the importance of the issue to the country (most legal scholars disagree with Judge Roberts on this). Kohl then asked Roberts if the Court made the right decision. Roberts returned to form and gave a long-winded answer that wasn’t terribly illuminating. Kohl pressed him, saying that Roberts had not, in fact, answered the question. Apparently because it was “inappropriate for [Roberts] to comment.� Why? According to Roberts, because the issue could come up again (we hope not!). But the majority opinion of Bush v. Gore clearly states that “consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.� Roberts did leave himself some wiggle room though, and said that it was “too recently decided� for him to really be able to discuss it.

A couple of other notes about some interesting things that came out of Kohl’s questioning He may be unassuming, but he’s wily: he got Roberts to say things that other senators have been unable to elicit. Now we want a Herb Kohl Judiciary Committee action figure (he could come with a cheesehead hat and a Kohl’s shopping bag as accessories)!

Kohl and Roberts had a discussion about “granting cert,� the decision of the Supreme Court to review a case. In addition to a laundry list of reasons, Kohl managed to get Roberts to say that personal views and inclinations do play into a judge’s role—it can in granting review in any event.

There was another interesting remark that came out of this session, evidence of John Roberts trying to have it both ways. In the questions about anti-trust, John Roberts said that his representation of the government in the Microsoft anti-trust case is proof of his devotion to the principles behind anti-trust. How? Wasn’t he just representing his client? We thought that meant nothing, gave no indication of a lawyer’s personal views. At least that’s what Roberts says any other time anyone asks him about something he did as a lawyer representing various clients, especially when those pesky Reagan-era memos come up. (2:32)

Senator Grassley's portion of the questioning was flatter than an Iowa cornfield and Roberts’ responses didn’t add any life to the party.

Grassley focused much of his questioning on the False Claims Act and whistleblower provisions. Roberts demonstrated that he knows what the False Claims Act is about and we can add the term "qui tam" to the long list of Latin phrases being thrown about at these hearings. Unfortunately, after all the rhetoric and explanation, we still haven’t a clue as to Roberts’ personal opinions.

Senator Orrin Hatch returned this morning to his game of softball (we have help with these, and people seem to love the sports metaphors) and to two of his favorite hearing themes: 1) the nominee’s duty NOT to answer questions in what both senators Schumer and Biden have called the one “democratic moment� in this process before what is a lifetime appointment to the highest seat on the highest court in our country; and 2) his warm fuzzy feelings about John Roberts.

Hatch chastised his colleagues for asking questions, telling Roberts there is no excuse for being pushed to answer questions about cases likely to come before the court - shortly after Specter noted Roberts evaded questions about cases already decided and/or cases that are unlikely to appear on the same facts before the court. Hatch chastised his colleagues for view that Roberts had “failed to distance himself� from very controversial views - on women’s rights and Title IX - that he espoused as counsel to the White House. In what is NOT the biggest surprise of the hearings, Hatch said he didn’t find these views “cramped,� a common criticism from many on Roberts’ writings on these issues. Hatch did, however, acknowledge that he had been wrong in originally opposing restoring an effects test to Section 2 of the Voting Rights Act, and that's why he changed his position after voting against the law in Committee and voted for it on the floor. Judge Roberts still hasn't conceded -- like Sen. Hatch -- that he, too, was wrong in opposing restoring the effects test.

Hatch ended his comments with the equivalent on a big wet kiss, telling the nominee he has never seen anyone do a better job of explaining himself – i.e. refusing to be “pushed to answer questions.� Senator Hatch apparently is also apparently in possession of a Magic 8 Ball, because he made the prognostication that anyone who can’t vote for Roberts just can’t vote for any Republican nominee. We guess making sure that Roberts is the best judge for the job doesn’t include wanting real answers to form a real opinion. (11:45)

Senator Kennedy, one of the authors of the Voting Rights Act of 1965 (he has a bit of experience with this sort of thing), pressed Judge Roberts about his efforts (on behalf of the Reagan administration Roberts is quite to point out) to restrict certain parts of that landmark piece of legislation when it was up for renewal.

At issue was the idea of whether the "effects test," which had been used for years, should be restored to Section 2 of the Voting Rights Act following a Supreme Court decision eliminating that test (which then prompted the Justice Dept. to drop numerous important voting rights cases). The basic idea with the effects test is that a litigant only has to prove that practices that have the effect of restricting an individual’s ability to vote, rather than that the practices are intentionally discriminatory. Because of the extraordinary difficulty of proving that discriminatory voting practices are intentionally discriminatory, restoration of the effects test had overwhelming bipartisan support in Congress, despite the Reagan adiministation's -- and Roberts' -- initial opposition. The ultimate passage of the Voting Rights Act extension, with the effects test, has paved the way for exponentially increasing the number of minority elected officials in both state and federal government.

Senator Kennedy put it to Judge Roberts very specifically: “Do you believe the effects test in the VRA is constitutional?� Well, after 6 minutes of pretty words with no substance and another round of direct questioning from Kennedy, there was finally an answer out of Roberts. Too bad it was qualified to the point of not having much meaning or reassurance.

Frankly, we wonder if Judge Roberts is getting tired of finding ways to avoid answering substantive questions that could have important, and illuminating, answers. We know we’re running out of ways to make snarky comments about how many ways Roberts has of avoiding giving meaningful answers. (11:25)

Senator Leahy had a spirited exchange with Judge Roberts over the review of death penalty cases. The question as stake was Roberts’ views on the constitutionality of review of death penalty cases—do defendants on death row have the right to have their cases reviewed in the face of new evidence. Roberts, shockingly, said he wasn’t really in a position to answer. Even though he wrote on that very topic, as Senator Leahy pointed out.

Roberts wrote about this issue during his time in the Solicitor General’s office, in a case called Herrera v. Collins. Senator Leahy pursued Roberts’ on views based on the writings at the time, but we got the same old “representing my client� line and would not give his personal views on the case. (There a quite a number of catch-phrases, maybe we can get a whole line of t-shirts out of it.) His refusal to divulge his personal views make it even more important that the Senate demand the memos he wrote in the solicitor general’s office on Herrera and 15 other cases. This is the only other avenue besides direct questioning that we have to discover Roberts' own views. If only someone would point out how critical those documents are to understanding Roberts’ legal viewpoints. Though we are having flashbacks to an appearance Senator Leahy made on Meet the Press a few weeks ago. As well as some polling data that shows the American people really want to see what is in those documents. It’s not just us, because it’s vital. (10:55 am) Unlike many of his Republican colleagues, Senator Specter pressed Roberts to reveal his views on specific issues. But again, Roberts played the duck and deflect game. When Senator Specter asked Roberts whether he believed the record that Congress amassed in the Morrison case was sufficient to support the Violence Against Women Act, Roberts refused to answer, claiming that this issue may come before the Court. Senator Specter called Roberts out, noting that this is a past case and there is nothing to suggest it would come before the Court again. Senator Specter also asked Roberts whether the “congruence and proportionality test�, a test that the Court developed to analyze legislation enacted by Congress pursuant to section 5 of the 14th amendment, is an example of judicial activism. Roberts again refused to answer on the ground that the congruence and proportionality test is implicated in cases coming before the Court. As Specter pointed out, however, this question is not about a specific case; it is about Roberts’ legal philosophy. Is Roberts extending his refusal to answer beyond specific cases and even beyond discussing issues all the way to basic philosophy? It looks that way, and that's quite troubling. (10:45 am)

Are these hearings a soap box for the “abortion twosome� (our podcast listeners know to what we refer)? Senators Brownback and Coburn have whiled away time that could have been spent trying to understand Judge Roberts’ views by scaling their own personal soap boxes on abortion. At least Judge Roberts is an equal-opportunity dodger—he declined to answer or respond to their provocations, instead giving what is going to be the catchphrase on the I Was At The John Roberts Hearings t-shirt: “I cannot answer that as it is an issue that may come before the court.� (Okay, as catchphrases go, it’s no Dyn-o-mite, but these are congressional proceedings, after all.)

Senators Brownback and Coburn also addressed issues beyond abortion, even if they did spend a fair majority of their time making grandiose pronouncements that has very little to do with the hearing at hand, since Roberts had already stated his inability to answer in that area.

On abortion, Brownback, bolted from the conservative pack yesterday to tell The Kansas City Star that he had concerns about Judge Roberts's views on abortion. Mr. Brownback's words reflected what is in fact worry in some conservative quarters about exactly what Judge Roberts thinks about abortion."

However, his concerns that Judge Roberts would not be staunchly pro-life appeared to have been allayed, as he this morning there was a 180 turn—Brownback seemed satisfied, demanding no answers and even praising non-answers. What does he know?

Beyond abortion, Senator Brownback dealt on property rights and the Kelo case, though didn’t seem to get an answer that was entirely to his satisfaction. Roberts discussed both sides of the argument, and didn’t tell Brownback what he wanted to hear: Congress should usurp the power of the courts. We didn’t get a clear sense where Roberts fell, but Brownback didn’t get to pat himself on the back over the Terri Schiavo case, either.

Coburn was more of the same: “good behavior� of judges based on their use of international law in reaching decisions, congressional authority, nothing that really deviated from the points Brownback was trying to make. Coburn wasn’t terribly successful, either.

We’re not going to talk about Coburn’s discourse on body language. We read a book about it in junior high, too. (Though sadly it didn’t tell us if our crush liked us back, which was our reason for reading it in the first place.) We do commend him for yielding his remaining time back, however. If he’s not going to say anything, he may as well not say anything in the more literal sense. (10:15 am) Well, yesterday we had a civics lesson from various senators, and today we got some instruction in grammar from Senator Specter. He backpedaled a bit on yesterday’s “They may be misleading, but they are his answers,� remark with an explanation involving the subjunctive verb form. We prefer “Conjunction Junction,� but that could just be us. (9:30)

We’re going to keep the wrap-up for today brief because today itself was, in fact, the opposite of brief. (Hey, politicians were involved, they haven’t gotten the brevity/wit memo, though we admit at times sometimes we forget about it, too.) Charts! Dodging! Weaving! Soooo many baseball metaphors! To be honest, we’re a bit tired, so we’re going to wimp out on you a bit and let you read what Alliance for Justice president Nan Aron had to say. We’ll see you tomorrow bright and early for tomorrow’s 9 am kick-off. (Another sports metaphor—we’re getting the hang of this. And, for some of us, 9 am does feel “bright and early.�)(8:15)

We don’t have much to say on Senator Cornyn’s portion of the hearing since it didn’t cover any new ground, though we did get to hear some lovely sound bites and buzzwords, so that was fun. (7:23 pm)

Senator Schumer continued to try to get Roberts to answer questions about Congress's power. He asked Roberts about a case from the 40s giving Congress wide latitude to legislate, Wickard v. Filburn. Roberts said he couldn't. Schumer pointed out that he answered questions about a controversial case from twenty years later, Griswold v. Connecticut, finding that the right to privacy bars states from restricting married couples from buying contraception, but Roberts said that Griswold was settled and Wickard wasn't. Schumer pointed out that many people believe the Constitution does not contain a right to privacy and the issue came up a few years ago in Lawrence v. Texas, dealing with gay rights. No dice. Roberts just won't say what latitude Congress has to judge. He also seems to have some logic in applying (the Ginsburg) precedent that lacks any real consistency. It would seem he applies it when it suits him to do so. (7:10 pm)

Reputed Republican “maverick� Lindsay Graham disappointingly used his half-hour to ask Judge Roberts about whether he agreed with the policies of the “Reagan Revolution� and issues of judicial selection. Nothing at all seeking to elicit his views on the law. You know, the views he would rely on if he were confirmed. How illuminating!

On the judicial selection front, Graham suggested the process shouldn't be politicized. and then proceeded to politicize it. inaccurately. Referring to Justice Ginsburg as an ACLU lawyer who had lots of views with which he disagrees, Graham noted that she was confirmed overwhelmingly in spite of those views. Note to Graham: it would have been really weird for the Republicans to oppose Ginsburg, given that her nomination was suggested to President Clinton by none other than the highest-ranking Republican on the Judiciary Committee, Senator Orrin Hatch. (He's the guy who now sits a few seats to your left, Senator Graham, if you want to check with him). President Bush engaged in no such meaningful consultation in his selection of Judge Roberts. (7:00)

Following Senator Sessions’s civics lesson that exposed the practice of, among other things, the Circuit Court judges discussing their cases behind closed doors, we’re back in the thick of actual questioning with Senator Russ Feingold (D-WI).

There was actual questioning, but not a lot of actual answering on the part of Judge Roberts.

Sen. Feingold asked if Judge Roberts feels the gains made since the extension of the Voting Rights Act have been positive.

Voting rights are good, we were working on how to extend it. (There’s that brilliant legal mind again, the same one that sought to weaken the VRA and watched his position be overwhelmingly and in a bipartisan manner rejected by both houses of the Congress.)

Senator Feingold finished up his questioning by asking if the intent test that Roberts wrote in favor of, the position that Congress overwhelmingly rejected, is still the right one. Would the clear benefits that we have seen from the forceful implementation of the VRA have happened if Roberts’s position had been adopted?

Judge Roberts, lauded by several members of the Judiciary Committee the most brilliant lawyer in America, never thought to find out if he was correct. Something that Senator Feingold clearly found hard to believe and said so. It’s funny how much the nominee clams up when he faces questions that go deeper than Sen. Sessions’s “how does the appeals process work?� Apparently real questioning in this case does not necessarily yield up any real answers. (6:15 pm)

Wow. For awhile, we were ready to tune out Senator Sessions because the first part of his “questioning� because, well, it wasn’t much beyond an ode to John Roberts.

But then our ears perked up. The first thing that caught our attention was Sessions’ assertion that Roberts would “call [things] as he sees [things].� The problem, however, is that what we know about how Roberts sees things isn’t all that comforting, and Roberts is dodging a number of questions that would let us know how he “sees it.�

Then Sessions started to talk about Roe v Wade. He even chose to read a quotation about supporting a conservative president who would nominate a justice that would overturn Roe. Sessions then immediately asked Roberts if he would “evaluate the matter fairly.� Fairly? What does that mean to you Senator Sessions? Roberts asserted that he would certainly come to the question with an open mind, but with no mention of respect for precedent or stare decisis in his response. Was Roberts telling Sessions what he wanted to hear, or is Roberts’ decision not to mention the precedents that uphold Roe cause for alarm? (5:15 pm)

Candor doesn’t seem to be a hallmark of John Roberts’ responses. Careful, perhaps. Measured. Calculated. But candid? We’ve heard “I cannot comment on that because it could be a case before the Court� a few too many times to fully come across as candid.

However, he did say that his department in the Reagan administration “encouraged candor.� If that’s the case, doesn’t that mean Roberts’ real opinions were wanted and that is what he gave in those memos? That the client he was representing asked for and received Roberts’ candid opinion? So are Roberts’ attempts to claim that he did not inject personal opinions into his memos because he was “just working for his client� at odds with the statement he made to Senator Feinstein defending his joke on the basis of the environment of “candor� encouraged by his employers?

(Just to note: we don’t judge Judge Roberts for making the lawyer joke – suggesting homemakers shouldn’t be encouraged to become lawyers – we just wish that it would have been funny. But maybe that’s what passed for humor in the Reagan administration.)

Senator Feinstein’s questions provided more ground for follow-up: Judge Roberts seemed to assert a conception of individual rights as a zero-sum game – suggesting that giving some people certain rights impinges on the rights of others. We're not sure how Judge Roberts thought end of life decisions would impinge on other person's rights. He seemed to argue that the rights that would be impinged was the right of the legislature to act in this area. Hopefully the Senate will flesh out whether he believes privacy rights can be trumped whenever the legislature acts. (4:57 pm)

Senator Dewine of Ohio covered a lot of ground in his questioning – from civil liberties and national security to free speech and the Americans with Disabilities Act – but didn’t press too hard for clear answers. We were glad to hear him raise concerns about the FISA court – an 11-member court that holds secret proceedings reviewing government intelligence actions that may violate civil liberties – and ask Judge Roberts about his role in appointing those judges.

We now know that Judge Roberts believes the FISA judges should be “above reproach� given the “unusual� nature of the court. Dewine went on to discuss his own views on free speech, religion and pornography, with unfortunately little input from Judge Roberts. Hopefully someone will actually ask questions on these vital topics. Dewine also raised concerns about the Supreme Court’s treatment of Congressional fact-finding – and its dismissal of such findings in its decision to strike down part of the Americans with Disabilities Act. Roberts responded that the Congress has an important fact-finding role that court’s can’t do, and that those facts can be very helpful to judges, yadayadayada… We’d like to ask a follow-up… (4:20 pm)

Senator Kohl asked John Roberts a rather open-ended question about distancing himself from his Reagan-era memos. Broad, yes, but it allowed Roberts the opportunity to meaningfully distance himself from some of the more objectionable views he held. He didn’t take advantage of the opportunity. Rather, he prevaricated and avoided the question. If he truly no longer hold these views, wouldn’t he be more than willing to admit he doesn’t? Or is he scared of alienating conservatives despite protestations that judges do not hold political positions? (3:22 pm)

Remember how we didn’t dwell to much on Senator Kyl’s remarks yesterday? Well, we’re continuing with that theme. He’s not saying much, though we’re surprised he’s not in a sweater with a big “R� on it rather than a suit, such a cheerleader he’s proving to be.

Kyl used his time to ask Roberts about his CV, rather then trying to address anything substantive. Kyl also talked a lot about his views, and what he thought progress is. Granted, we’re not on the circulation list for right-wing talking points, but the impression we got from some of the Republican members of the Judiciary Committee is that personal views are immaterial. If that’s so, why did Senator Kyl dwell so long on his? Maybe he didn’t get the full set of talking points?

Roberts didn’t say very much this round, but this time it isn’t because he was dodging questions and declining to answer so much as he wasn’t asked much of anything. (2:49 pm)

In our wrap-up podcast yesterday, we discussed the possibility of Judiciary Committee action figures (with, of course, kung fu grip). We didn’t have Joe Biden in mind, really, when we discussed such a (great) possibility, but his performance today shows that he could be Joe “The Terrier� Biden.

After a few minutes of ruminating about strike zones (hey, where have we heard that before?), he finally “got to it.�

With Joe Biden’s usual… flair. Oh, okay, combativeness. But beneath the bombast were some very pointed questions on Roberts’ views on gender equality and the Ginsburg standard.

Senator Biden examined Roberts’ stances in memos relating to gender discrimination. As a young lawyer, he had written that governments could intentionally discriminate against women as long as they had a rational reason for it (such as it would cost more money to treat women equally with men). Roberts squirmed a bit, but once he got the memos, he fell back on his old argument that, as a staff lawyer, didn’t have positions. Biden wasn’t having it. Use of phrases like “strongly agree� indicate that John Roberts had a view on these matters at the time he was writing.

Biden also very clearly pointed out the inconsistencies in Roberts’ approach to answering questions. Ginsburg answered a much broader spectrum of questions than did Judge Roberts, despite his claims he was just following Justice Ginsburg’s lead.

There’s more there, but, like everyone in the hearing room, we think we need to take a few breaths before getting back to it. (1:00 pm)

We’ve had our first judicial filibuster. Or at least a filibuster by a judge. In the sharpest exchange of the hearings thus far, Senator Kennedy questioned Roberts about voting rights and other civil rights issues.

Rather than giving clear, succinct answers to these questions, Roberts chose to opine at length on the Reagan Administration's views and the state of the law rather than give his own views. Roberts also tried to toe a fine line of making sure conservatives would not become angered if he disavowed his Reagan-era memos advocating the restriction of certain aspects of the Voting Rights Act without agreeing that he believed in the statements he wrote. We heard a response of “I was merely representing my client.� No agreement, no disavowal even when asked about memos in which he had specifically given his own views, such as the application of Title IX to schools that receive federal financial aid. But, the measures that Roberts advocated would have so undermined advances in civil rights and equality, they must be disavowed. As a Supreme Court justice, John Roberts would become one of nine ultimate authorities on the protection of rights. A restrictive and dismissive view of such critical protections does not bode well for his potential position as an adjudicator and protector of hard-won rights and freedoms. (12:00 pm)

From hardball to softball. (That was an easy sports reference, so we came up with it all by ourselves. Please don’t ask us anything else about the subject, though.) Senator Hatch just questioned John Roberts. He concluded his first round of questioning with a high, soft lob (hey, we’re on fire! Though we think that might be tennis so we’re mixing our metaphors…). “As chief justice, would you encourage other lawyers to engage in pro bono work?� Don’t put him on the spot too much, Senator Hatch!

A fairly interesting statement did come out of Senator Hatch’s questioning period, notably Roberts’ statement that when a court or judge votes in a way to overturn legislation like in the Morrison case (dealt with the Violence Against Women Act), they are not engaging in activism, they are simply “wrong.� An interesting view. So, when courts expand rights they are activists, but when they restrict rights, rights protected in congressional legislation, they are wrong but not activists? Funny how that works. (11:30 am)

It’s a one-two punch. Senators are playing hardball. It’s… well, never mind, we just exhausted our capability of coming up with sporting metaphors (we have help with those most of the time). But Senator Leahy, the Ranking Member on the Judiciary Committee just gave Roberts a very thorough questioning. He addressed issues ranging from torture to detainment to the war time powers of Congress. Roberts had some fairly slick answers on those topics.

Then we came to the Gwinnett v. Franklin case. Long (and horrible) story short, Christine Franklin, a high school student was harassed and raped by a coach and teacher at her school. She sued the Gwinnett School District under provisions of Title IX.

During his time in the Solicitor General’s office, Judge Roberts argued for denying Franklin the opportunity to seek damages – the only meaningful remedy available to her. The Supreme Court unanimously disagreed with Judge Roberts. Writing for six justices, Justice White condemned the argument that Judge Roberts advanced for leaving the girl “no remedy at all.�

So Roberts’ arguments in the hearing that this student could have sought “other remedies� such as “back pay� are absurd on their face. Roberts’ approach left her with no avenue, no matter how many different ways he tried to explain “statutory interpretations.� Senator Leahy wasn’t buying it, either. What sort of recompense for her suffering could this girl expect in a law interpreted by Roberts? None. (10:58)

Wow, it’s quite a morning. We were struggling to wake up a bit, dragging despite a grande vanilla latte (too bad we don’t like espresso), but then Senator Specter started his questioning. Charts! Stare decisis! Privacy! Roe vs. Wade! Evaded questions! Did we mention charts?

Senator Specter engaged in a very thoughtful back and forth with John Roberts over stare decisis, the legal principle of respecting precedent. Roberts had an answer for these questions, even if they were non-answers. (Roberts seems to have gotten the message from the Republican members of the Judiciary Committee about answering questions: don’t. There was a lot of “I decline to answer.�)

And then came the chart. A list of the 38 cases that the Court had taken that challenged Roe. Roberts again nimbly stepped around a direct answer, instead going back to his buzzwords of “stability� and “humilty.� But it seems Roberts is taking the advice of Senator Kyl. et. al. that evasion, and in some cases outright refusal to answer (albeit very neatly phrased) is better than elucidation. (10:15 am)

And the first day of hearings has wrapped. We’re a bit tired (though apparently not as tired as some of the senators and their staff who seemed to be unaware they were visible in the background. We thought about doing a blind item on which senator was caught picking his or her teeth live on national television, but then thought that was perhaps too much), and the actual hearing (you know, questions and answers) hasn't even started yet.

Judge Roberts gave what appeared to be an extemporaneous opening statement (he has had years of lawyerly training in front of the Supreme Court after all—but his eloquence is not at question here) that touched on the issues raised by many of the senators. His answers, however, must go much deeper than comforting buzzwords like “modesty,� “humility� and “restraint.� He MUST answer the substantive questions in a substantive fashion.

He said that a judge acts as an umpire, just calls balls and strikes. That's true, but some umpires have a low strike zone, some have a high one, and some change their strike zone depending on who's pitching. At the risk of going too far with this metaphor, the Committee needs to know what kind of umpire Roberts will be.

There was a theme for the day, as we noted before. Republicans repeated over and over again their talking points about why Judge Roberts should not answer questions. We heard about Justice Ginsburg’s hearings and the way she did or did not answer questions. There was quite a disconnect between reality vs. rhetoric on Ginsburg and on what conservatives once thought judges should be asked. Take a look. We’ll have more for you tomorrow as we get into the questioning portion of the hearing. (4:12 pm)

Senator Durbin urged the senators to evaluate Judge Roberts based on one criterion: whether Judge Roberts will restrict or expand individual freedom. Will Judge Roberts stand up for civil rights in the vein of Judge Frank Johnson--a Republic judge from the South who was branded a judicial activist for protecting the rights of African Americans to protest during the civil rights movement? As Senator Durbin recognized, judges, particularly Supreme Court justices, have a profound impact on our lives. It is important to assess what impact Judge Roberts will have, if confirmed, on issues involving privacy rights, the power of the executive branch during the war on terror, and the separation of church and state. The American people deserve a nominee who will protect us all, one who will expand not narrow rights, and one who will do justice without fear or favor. To ensure that Judge Roberts would be such a justice on the Supreme Court, Judge Roberts needs to answer the questions posed to him during the hearings. (3:30 pm)

The then and now game is not treating the Republican members of the committee kindly. First Orrin Hatch and now Charles Grassley. Senator Feingold just brought up remarks Senator Grassley made years before about the importance of asking about judicial philosophy-a slightly different tack than the good senator from Iowa took today.

And now the junior senator from Wisconsin (On Wisconsin!) is making the case for releasing the solicitor general documents. Does the administration have something to hide? Feingold points out that by stonewalling, the White House is doing Roberts no favors, but creates troubling questions about what those documents might contain.

All in all, a refreshing blast of common sense from Sen. Feingold. (We expect nothing less from the fine state of Wisconsin. We're not showing our biases here, are we?) As many legal scholars have been saying in recent weeks, there's no reason the Senate should be kept in the dark about Judge Roberts' views on the law before voting on his confirmation. After all, Feingold and legal scholars say, we know what the sitting justices think already, and Supreme Court arguments are invariably geared to how they think. If there's nothing untoward about knowing how sitting justices approach the law, why should the Senate and the American people be forced to know anything less as it relates to Judge Roberts? (2:07 pm)

Senator Feinstein just made a very powerful statement on what the true impact of Roe v. Wade was on society, with a chilling vision of what women faced—from morbidity to imprisonment—before Roe became the law of the land. This is why it is critical senators ask a nominee their views on issues like privacy and unenumerated rights—we must protect the march of progress this country has made. (2:00 pm)

Here's a shocker-the approach of Republicans and Democrats to these hearings differs sharply. We know! Normally they skip merrily hand in hand through the tulips, but not today. We'd tell you all about what Senator Kyl said, but it was, to be kind, more of the same.

Republicans are focusing on the process-trying to set the stage for a justified evasion of questions by the nominee. Our Magic 8 Ball indicates this may not tell us a lot about Judge Roberts judicial philosophy. His record backs up the 8 ball.

Meanwhile, their Democratic counterpoints are focused on a constitutional vision, the idea that, as Senator Biden put it a vision "that allows for expanding protections for liberty and personal dignity and giving the national government the ability to protect the powerless." (Senator Biden also made probably the most provocative comment on the hearings thus far-though we are only an hour or so in-saying that based on Roberts' record thus far, he would vote no on the nomination.)

The approach by the Democrats is backed up by the American people. According to recent polling, Americans by a large majority think that not only is it proper to question a nominee about their views, but that the Senate must ask these questions. A majority also believes that a refusal to answer questions on important legal issues would justify rejecting the nominee. Sounds different than the line the American people's elected representatives were trying to take, huh?

Senator DeWine of Ohio bucked the Republican trend a bit, actually talking about the Constitution rather than relying on talking points and platitudes. (We also want one of those snazzy water bottles with the Senate seal on them like the senator had next to him. Our nerdy friends back home would be very jealous.) Let's hope the rest of his compatriots on the committee realize how important this approach is--the approach of actually discussion a nominees views--in truly examining a potential lifetime appointee to our nation's highest court. (1:46 pm)

Do we have a theme for these hearings? We certainly do on the Republican side of the aisle. Senator Grassley from Iowa joined the chorus of his peers in trying to claim that these hearings were not the proper forum for real questioning. Grassley stressed "civility." Well, funny thing, civility and thoroughness are not mutually exclusive, as just about every case argued before the Supreme Court demonstrates.

Grassley also belabored the idea of checks and balances and accountability. Frankly, we're a bit surprised by those who have so clearly pre-judged Roberts and given him a free pass want to dwell on this point. After all, Roberts writings (the one's we've been allowed to see, in any event) indicate the checks and balances aren't so important to him, at least not as important as expanding presidential power beyond all reasonable restrictions and curtailing judicial authority to protect individual rights.

Grassley also said that the people's elected representatives should have the power to legislate and that the courts should have minimal involvement. Yet Roberts has, time and again, advocated the position of a Court to limit congressional authority to pass laws that protect our rights and freedoms. So far, we're hearing a lot of talking points from the Republican senators at the expense of ignoring the facts before us in Roberts' record. The Senate needs to take its advice and consent role seriously, not become a PR machine for the nominee. (1:09 pm)

Oh, Senator Kennedy. We knew we had a soft spot for you for a reason, and not just because you sound like Mayor Quimby. The senior senator from Massachusetts is a lion of the Senate, with a deep commitment to civil rights.

Senator Kennedy pointed out that we cannot continue to ignore the Americans who are left behind and that we must confront the injustice, inequality and gross disparities that are evident in our society.

Kennedy rightly describes these hearings as Judge Roberts’ interview with the American people. We have a right to know what Judge Roberts thinks, and the Senate is acting as our interviewer. So the question that keeps popping into our head is: “Why is the White House withholding critical documents from Roberts’ time in the solicitor general’s office?� The Senate needs those documents to fully do its job.

Senator Kennedy laid out the issues at stake—progress, equality, accountability. See the full text of his statement here. (1:00 pm).

A second Repubican senator, Orrin Hatch of Utah (defying conventional political tie conventional wisdom in a very nice gold striped number), seems to be trying to lay the groundwork that it’s okay for Judge Roberts not to answer questions he find uncomfortable. Nice try. Roberts has duty to answer the questions of the Senate. They have a Constitutionally prescribed co-equal role!

Hatch tried to bring up a Harding nomination from years ago, citing a same-day nomination and confirmation as some kind of gold standard. Because to respect the separation of powers that Hatch praised so highly the Senate should be a rubber stamp for the executive branch? No. Speed is not the standard here, thoroughness of review is.

Senator Hatch himself in 1997 said “"[T]he Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining which will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails... Determining which of President Clinton's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of nominees' jurisprudential views." (Address of Senator Hatch before University of Utah Federalist Society chapter, February 18, 1997) (12:35 pm)

And they’re off! The hearings have begun, and Senator Specter kicked off proceedings with his opening statement. He made a couple of comments that were, if nothing else, surprising. He seemed to call the Supreme Court of now—the Rehnquist Court, we might add—as a super legislature. (Judge Roberts has, at times been called a Rehnquist protégée—he clerked for the late chief justice early in his career.)

Specter is largely focused on the Court vis-à-vis congressional authority, referencing the Violence Against Women Act and Americans with Disabilities Act among others.

Specter belabored the point of answering questions and that Roberts could choose to answer or not answer as the situation applies. Just as senators have a duty to ask proper questions—and judicial philosophy certainly falls under that rubric—the nominee must answer all appropriate questions. Don’t believe the Ginsburg standard hype. Specter called the questioning a “subtle minuet.� This is a nice metaphor, but this isn’t a dance, it’s the future of our country.

Meanwhile, when we were in college, we didn’t think that sitting around eating Chinese take-out and watching PBS qualified as a “party,� but that’s what people in our office are calling it. (12:20 pm)

Well, today’s the day. The Roberts hearings begin. Today is primarily focused on the opening statements from the senators, and tomorrow we will begin the real questioning of Judge Roberts. And there is much questioning to be done. Linda Greenhouse of the New York Times has done a nice overview of what topics certain senators are likely to cover, and a series of op-ed contributors to the same publication has provided a list of questions that should be asked of the nominee (all five pieces are accessible from this index.

We here at the Scoop will be live-blogging the hearings to give you an up-to-the minute account of the hearings, from startling statements to revelations to unfortunate neckwear choices. Your courtside and color commentary starts at noon. (We knew we were telling our mothers the truth when we said we could so get paid for watching television.)

In other Court-related news, speculation continues to run rampant over the will he/won’t he nominate Attorney General Gonzales to fill departing Justice Sandra Day O’Connor’s seat. Senator Arlen Specter threw another log on the fire with remarks on Meet the Press that it was “too soon� to nominate Gonzales for the high court. There are a number of political tensions the White House would face with a Gonzales nomination, both from the right and left, so perhaps Senator Specter was providing cover for the White House, or, given his long-standing service in the Senate and his position as Chair of the Judiciary Committee, he got a sense that a Gonzales nomination, on top of the already-controversial Roberts pick, would not go over well.

Yes, Virginia, there is a Rehnquist standard!

In the past few weeks, you’ve probably heard right-wing groups casually throwing around the term “Ginsburg standard.� Well, there’s a new standard in town, the Rehnquist standard.

When William Rehnquist was nominated for elevation to chief justice, even then-President Ronald Reagan noted that the release of documents was important because “Supreme Court nominations are so important that I did not want my nominees to enter upon their responsibilities under any cloud.� Documents from Chief Justice Rehnquist’s time in the Justice Department were provided by the Reagan administration, despite previous claims of privilege.

We are in the same situation again. Judge Roberts is now nominated to be Chief Justice of the United States. If confirmed, he would be the head of our nation’s judiciary. The Bush administration has been stonewalling on releasing critical memos from Roberts’ time in the Solicitor General’s office. But, as William Rehnquist’s elevation to chief justice shows, the stakes are now different and critical documents must be released.

Sorry we’ve been quiet and short with you in these last couple of days—we experienced some minor technical difficulties that have now been corrected. (NOTE - We've been fine here at the podcast page, it's the main page that was hit with a gremlin or two.)

Today is Chief Justice William Rehnquist’s funeral. A service for family and friends will be held at St. Matthew’s here in DC, with a private burial at Arlington National Cemetary. Again, our thoughts and sympathies are with the Chief Justice’s friends and family.

Today's post, again, is short, but be prepared for a deluge of information starting tomorrow. In the meantime, if you must have your fix, why not check out our podcast (linked in case you missed the highly-visible graphic on the homepage), which is chock-full of commentary and analysis on the events of the past few days.

UPDATE - The Judiciary Committee will announce the hearing schedule tomorrow.

We want to take a break from our regularly-scheduled musings on the Supreme Court for a moment. The devastation wrought by Katrina is horrific. Our thoughts are with the millions of people affected by this disaster. We here at the Scoop, knowing that our readers are the sort to take action and get involved, encourage everyone to do what they can—monetary donations, care packages, giving blood. For more information on what is most needed, the American Red Cross is a good place to start. We’ve also received word that the United Way of Acadiana is coordinating the feeding of a huge number of refugees, so they can use your help, too. Do what you can. You can do something.

Judge Roberts’ hearings begin after the Labor Day weekend—things kick-off at 1:30 on September 6th with opening statements from senators. In the following days, we will hear from John Roberts and testimony from witnesses both for and against his confirmation. (The latest edition of our podcast explains what the hearing week will look like in more detail.)

As cheesy as it sounds, this is a historic moment. If you are a regular reader, you are probably pretty into this stuff and might like the opportunity to see the hearings live and in person. Well, too bad. Radical shifts in procedure have been introduced for the Roberts hearing, unprecedented shifts that will limit the public’s ability to get into the hearings.

Passes are required for, but still do not guarantee, admission. The hearing room is equipped to handle 250 people, but space is being allocated for only 72. Standing will not be allowed, even though it has for every past Supreme Court hearing.

Citizens are being denied the opportunity to watch these historical proceedings of their government in action because of excessive, and unnecessary, restrictions.

Why? We don’t know. (Security does not account for these measures.) But there is something you can do—contact Senate Judiciary Committee Chairman Arlen Specter and let him know that the hearings should be an open and transparent process and that any and all unnecessary restrictions should be lifted.

Every few days, it seems that the right has a new rallying cry, a new battle flag, a new standard, to wave. (And, to channel our study of Macbeth in high school, these talking points are generally full of sound and fury, signifying nothing. We'll leave you to recall the rest of the quotation to find out who tells the tale.) For the past few weeks, the official mouthpieces of the right keep trying to hoist what they call the "Ginsburg Standard." Everyone's favorite calm and reasoned commentator Robert Novak first raised the point (such as it is) several weeks ago. Progress for America brought it up again yesterday. Too bad they are so married to a point they can't let it go even when it has been thoroughly refuted.

What is the Ginsburg Standard? Or should we say the so-called Ginsburg Standard? The claim is that Justice Ginsburg refused to answer questions about her views on controversial issues. Therefore, the right is claiming, John Roberts should be allowed, and even encouraged, to evade senators' questions regarding his views on critical issues. There are so many things wrong with that, we don't really know where to begin.

The thing is, Justice Ginsburg did answer questions and, in fact the Judiciary Committee noted that they knew far more about her views on controversial issues like reproductive rights than they had learned about any previous nominee. Furthermore, encouraging John Roberts to be evasive in his confirmation hearings shows a contempt for the constitutional role of the Senate.

Senator Charles Schumer will be addressing the American Constitution Society about "the myth of the Ginsburg precedent" tomorrow. Stay tuned. Also, for a good look at the flaws in the argument, the National Women's Law Center has put together a very good document, as has the American Constitution Society.

We have a team of over 10 lawyers here at Alliance for Justice, and for the past several weeks, they have been poring over documents, briefs, statements, memos and countless other documents to get an understanding of John Roberts’ views on the law. What we (okay, they) uncovered, was not reassuring. So, after extensive research, fact checking and re-checking, Alliance for Justice has decided to oppose John Roberts’ nomination to the Supreme Court. We have the report for you—105 pages of fun. Beach reading for your Labor Day weekend.

Honestly, though, this is a thorough and comprehensive look at the Roberts record we know about. We may be a bit biased since it is our report, but we think this is required reading for those who really want to educate themselves about John Roberts’ record.

Apparently, people debate the use of Astroturf in sports. Some of us here at the Scoop have a better idea about this than others. We all know, however, that there is no substituting genuine engagement by people in the political process.

Other groups seems to be taking a dimmer view of this. In the past two days, we’ve seen support for John Roberts from “Women for Roberts� and “Project 21,� an organization calling itself a civil rights group. Funny thing. Both of these events were sponsored by Creative Response Concepts. They sound like a PR firm because they are a PR firm… A highly partisan PR firm behind such fun forays into truth and high-minded debate like the Swift Boat Veterans for “Truth.� They are engaging in something called astroturfing—trying to create the illusion of grassroots support where none exists.

CRC has a history with the Bush administration, and these events showing “genuine� support for Roberts are nothing more than a part of the carefully-choreographed White House script for the Roberts nomination.

Roberts’ record shows high troubling stances on women’s rights and civil rights. But the spokespeople for Creative Response Concepts didn’t want to go into that. So, we did it for them. Find out who CRC really is and what Roberts’ record looks like in terms of women’s and civil rights.

For a federal judge and highly-educated lawyer, John Roberts doesn’t seem to have the best grasp of the whole “checks and balances� thing. (Maybe a refresher would be helpful.)

He seems to have almost a ranked order for our branches of goverment… Executive over Congress, Congress over the courts. Recently-released documents indicate that Roberts holds an expansive view of presidential power-—memos indicate he believed that the president should be able to wage war “without the interference of Congress,� and also strongly supported presidential recess appointments in the face of Congressional opposition.

That is not to say that Congress gets left out in the cold in Roberts’ hierarchy. No, no. Roberts was a staunch advocate of court-stripping. And not the fun page-99-of-America-the-Book kind of way, either. Roberts felt that it was perfectly reasonable to limit the courts’ jurisdiction over certain (politicized) issues like choice and desegregation. (He did admit it may not be the smartest choice politically, constitutionality issues aside.)

So, in John Roberts’ eyes, it would seem that while the branches of government are separate, they are certainly not equal.

Hope everyone had a good weekend. We at The Scoop woke up to an article in The Washington Post that reminded us why we are continuing to have that uneasy feeling about one John Roberts. Set aside political philosophy for a moment and consider the structure of government. The judiciary stands as the only means for an individual to get a hearing on the law when there has been some sort of harm, whether that harm came from an individual, a corporation, or the government. It is a bedrock principle of our democracy.

So why has John Roberts wanted to limit Americans' ability to protect their rights? The Post article describes the movement amongst conservatives to limit access to federal courts by restricting technicalities for admission like "standing" (limits on the person able to make a claim) and "justiciability" (limits on the powers a court has to hear a claim). It should come as no surprise that Roberts has been wanting to jack up the limits on both of these since he was a young attorney in the Reagan administration. So, even if Congress passes laws to protect civil rights and the environment, they are rendered completely useless because there is no place to go.

And John Roberts is perfectly ok with that.

It’s a Document Day! Trees have been killed, hundreds of thousands of copies have been made, the press, lawyers and researchers are rushing to get their copies—just like the release of the latest Harry Potter. Well, not really, but this is what passes for excitement in Washington during August.

What will be found in the documents? (And will documents be found? Certain memos Roberts wrote on affirmative action, Bob Jones University and presidential pardons are MIA right now.) What we’ve come across so far doesn’t exactly inspire us to jump for joy. We are willing to hazard a guess that the new documents won’t provide much reassurance regarding John Roberts’ commitment to individual rights. Even Ed Whelan, president of the conservative Ethics and Public Policy Center, agrees with us. “Those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents.� Well, we certainly haven’t seen any signs of moderation, squishy or otherwise, so far.

In a statement, Reid said “all this talk about whether Democrats will support the Roberts nomination is laughably premature. The hearings have not even begun. The White House has so far refused to produce relevant documents, and the documents we have seen raise questions about the nominee's commitment to progress on civil rights.

Senators Kennedy and Leahy also quickly offered rejoinders. Senator Leahy, in particular, is vehement, saying that Roberts’ views were "among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women's rights, privacy and access to justice."

So, the Senate isn’t backing down or rolling over or whatever other language people are using. It is taking time and deliberating, and taking the steps to ensure it has the information it needs—despite the blocks being thrown up by the White House—to make an informed decision.

More documents = more red flags. Yesterday’s release of over 5,000 documents from the Reagan Library – and the withholding of several hundred – has raised more concerns about what we’re learning and what we still don’t know about Judge Roberts.

As reported in the Washington Post, Roberts slammed three Republican House Members, including current Senator Olympia Snowe, for supporting a principle guaranteeing equal pay for different jobs deemed to have comparable worth, calling it a “radical redistributive concept,� and comparing it, in the Post’s words, to “Marxist dogma.� Roberts also signed off on a presidential telegram that invoked the Gettysburg Address and the legal principle of Plessy v. Ferguson (that African-Americans were not considered “persons� for the purposes of the U.S. Constitution) as analogs to legalized abortion. The Postalso reports that, on the church-state front, Roberts wrote that a Supreme Court decision barring a moment of silence for prayer in schools “seems indefensible.�

The removal of 478 documents from yesterday’s delivery also raised eyebrows here at The Scoop. Many of the documents were “withdrawn� on claims of protection by the Privacy Act. But the usual way to conform with that law is to simply blot out, or “redact,� sensitive information about individuals, not to leave out entire documents as was done yesterday. On that note, 20 of 27 pages in a box of documents on the Equal Employment Opportunity Commission were listed as “Withdrawn.� Wherefore? Also, in what appears to have been a mistake by library staff, a folder containing discussions about affirmative action has gone missing.

Of course, we couldn’t let the report about Roberts’ advice to deny Michael Jackson a presidential thank-you note slide by without noting that the then-White House lawyer wrote snidely that “I hate to sound like one of Mr. Jackson’s records, constantly repeating the same refrain...� Say what you will about the former King of Pop, but this was 1984, and “Thriller� still ruled.

They're baaa-aaack… From the same producers who brought us Justice Sunday, we now have Justice Sunday Part Deux: Our Kind of Activism. (Sadly nothing like Festivus for the Rest of Us, and not nearly as entertaining.)

Okay, so maybe that isn't exactly the title, but that was the purpose of this weekend’s event. Such luminaries of logic and tolerance as Tom DeLay, James Dobson and Tony Perkins turned out on the bully pulpit in their Sunday finest. There was even a come-back role for Robert Bork.

They threw around words like "oligarchy" and "activism" and "autocracy." They railed against so-called “judicial activism� and rallied to support John Roberts. But when the Justice Sunday crowd talks about activism, let us be clear—they are demanding their own brand of activism, one that suits their political agenda, nothing more nothing less. It is the Rehnquist Supreme Court, after all, that overturned six decades of precedent in the 1990s when it began limiting Congress’ power, and has continued to strike down federal statutes at a rate that has alarmed legislators on both sides of the political aisle.

In a letter to Judge Roberts, Republican Judiciary Committee Chairman Arlen Specter decried this activism and its implication that the Supreme Court has on too many occasions decided that Congress lacks competence to decide certain issues of national importance. The fact that Roberts has expressed that the Rehnquist Court is “not very conservative,� suggests that the nominee has doesn’t share Specter’s (and our) concern that that this type of activism is a problematic revision of constitutional checks and balances.

Mildly encouraging news out of the White House yesterday evening: in a letter to Sen. Patrick Leahy, Ranking Member of the Judiciary Committee, White House Counsel Harriet Miers sets forth a timeline for the release of more Reagan-era Roberts documents. Though this is encouraging, at least two issues of great concern remain.

First, the Bush administration has not backed off from its refusal to release documents from the three-plus years Roberts spent as the Principal Deputy Solicitor General during the Bush I years his most recent and most powerful public policy-making position. Hopefully, today's letter from Judiciary Democrats to Attorney General Gonzales will change some minds.

Second, Miers' letter contains three eyebrow-raising references to a so-called Constitutionally-based privilege, which she says may be invoked to withhold some of Roberts' documents. You can do your due diligence and check for yourself, but the Constitution we've been reading doesn't contain any passages about a presidential privilege to shield information from the public.

For a little Friday levity, check out the far-right's latest demagoguery extravaganza, "Justice Sunday II," where, among other things, activists plan to continue trying to paint the Democrats on the Judiciary Committee, half of whom are Catholic, as anti-Catholic. Along related lines, the New York Times reports that John Roberts did some politico-religious profiling of his own back in the day, promoting a friend of his who was applying for a high-level Justice Department job as a "deeply religious Protestant."

Yesterday, the New York Times reported (repeated also here and here) that Sen. Ron Wyden of Oregon asked John Roberts whether Congress had the power to intervene in a case like the late Terri Schiavo. Specifically he asked, "whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy."

Roberts responded, "I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court, and prescribe particular remedies in particular cases, Congress has overstepped the bounds."

As you can imagine, this is a bit of a bombshell for conservative extremist types that thought it was perfectly appropriate to pass a law in the wee hours of the morning that was specifically aimed at one woman's ongoing private tragedy. Despite the fact that Sen. Wyden's staff wrote John Roberts' response down "word-for-word," everyone's favorite faux District Attorney (and Roberts shepherd) Fred Thompson has a remarkably different recollection. And his staff has notes to back him up too! Hmmm.

So, we have a bit of a mystery here gang, but underlying that is a very important revelation. A Supreme Court nominee, when asked a hypothetical question regarding a specific issue related to Congressional authority and privacy has answered the question. Write that on a sticky note and tack it on the fridge... we at the Scoop think a precedent has been set for the hearings starting September 6th.

Starting today we'll be spreading the content around a bit more by publishing the Insider Scoop here as well as on the main SCW page. Today was our number one podcast download day yet, so thanks for listening!

* * *

Jo Becker of the Washington Post reports that the administration is holding back thousands of pages of documents, looking for any “surprises.� Clearly this demonstrates the administration’s commitment to an open process and respect for the Constitution’s role for the Senate. Certainly it is more important for the White House to get its way than it is for the Senate to be able to perform its advice and consent duty. Do they want a chance to whitewash a record that may be too far out of the mainstream for most Americans, Americans who overwhelmingly prefer a moderate justice?

Becker also notes that “three weeks [after the nomination of Roberts], [White House] officials say they recognize that Roberts's record is going to be central to Senate confirmation hearings.� This is a revelation? It comes as a surprise that the Senate and the American people might be interested in the record of a person who could be making decisions that impact their lives every day for decades to come? Yes, that is quite the stunning revelation.

And it seems like the Bush administration just can’t make anybody happy lately—conservative groups supporting Robert charge that the White House isn’t doing enough to stand up for John Roberts and his record. That instead of trying to spin what he’s done into something palatable, the White House should stand up and say Roberts was unequivocally correct in his thinking on these issues. Here we have to agree with Sean Rushton. (Blue moons do happen.) Well, kind of. If Roberts’ record demonstrates that he is committed to the rights and protections enshrined in the Constitution, why is the White House trying so hard to obfuscate or run a public relations campaign? The record can and should speak for itself. So, let the Senate and the American people take a look at that record without further delay.