My First Supreme Court Hearings


Seated in the upper right, I mentally calculate the effect of 462 bushels of wheat on the national market.

Around hour 18 of the Supreme Court hearings for John G. Roberts (HLS ’79), I reflected on the past few days of hearings and opening statements and realized that I had learned three things. First, things are never as exciting as you think they will be in anticipation. Second, the mixture of oppressive humidity, intern pheromones, and press bravado combined to form a foamy cocktail of immortality for anyone possessing the requisite chutzpah to stay in the ‘business’ long enough. And third (and least lofty), the 11th hour “nuclear option” solution by the so-called ‘Gang of 14’ saved both parties from considerable embarrassment and will likely redound to the benefit of my party over the course of the next year.

The first of these truths came down to me from the heavens at around 8pm on Tuesday, September 14th. Senator Charles Schumer (HLS ’74)-the Washington roommate of my summer boss, Senator Dick Durbin-had spent his years on the Judiciary Committee laying out his belief in the importance of probing the judicial philosophy of federal court nominees. After all this build up, Schumer’s 30-minute interrogation appointment with the aspiring Chief Justice promised to be one of the highlights of the hearings. I had endured months of senatorial monologues, hundreds of sweltering walks to and from the metro in a coat and tie, and the ubiquitous and irritating muffled vibrations of stowed blackberries to reach this moment. At the end of his interrogation, I felt much like I did after watching the long-awaited Star Wars Episode I: bewildered and deflated.

Schumer spent much of his allotted time grilling Roberts about his views on the ‘well-settled’ nature of Wickard v. Filburn, an important commerce clause case unknown to 99.9 percent of the population and a large proportion of practicing attorneys. Justice Roberts responded with a patient, schoolmasterly lecture on the consideration of Wickard in the recent Raich decision. Afterwards, in a conversation I overheard in the bathroom, one senator quipped to his counsel: “I can’t believe Chuck spent 20 minutes talking about Wickard.” Amen.

Senator Schumer’s odd turn was the product of tin-eared earnestness and perhaps overly meticulous preparation. The real prize for statesmanship belonged to Oklahoman Tom Coburn, however, whose already squat stature in the Senate diminished further when the good country doctor, after working on a crossword puzzle for the first few hours of opening statements, punctuated the day with a weepy lamentation at the state of partisan division in America. Three cheers for the upper chamber.

The second truth occurred to me as I shared a Senate tram with Jim Flug (HLS ’60), Robert Byrd, and Ted Kennedy. Flug, Kennedy’s on-again, off-again nominations counsel over the past 38 years, came out of retirement in anticipation of a momentous fight between the parties over expected vacancies this term. Grey-haired lions of the Democratic Party, Byrd and Kennedy are approaching new records for Senate longevity. After studying Jim Flug’s bulldog frame for several seconds, Byrd ran his fingers through his hair, raised an eye brow and exclaimed: “You’re STILL here? Ha! Now I’ve got more hair than you!” Senators Biden and Leahy (along with Kennedy) are now approaching tenures on the Judiciary Committee that number longer than most people spend in the workforce. It becomes increasingly apparent that, if you can stomach the stress of the work and the bile of your opponents, one path to becoming a centegenarian is getting yourself elected to the Senate.

The truth of my final lesson is everywhere, like post-firm event drunken falsetto impersonations of Jamie Foxx’s “Gold Digger” refrain. Dr. Frist’s threat to blow up the Senate by invoking the so-called ‘nuclear option’ to eliminate the filibuster and push through judicial nominations has resulted in moderation on both sides. The president avoided the possibility of an embarrassing floor fight by sending even-tempered, conservative nominees to the Senate in John Roberts and Samuel Alito. Alito is undoubtedly conservative, but Democrats could have done far worse. Even the ill-fated Harriet Miers nomination was another indicator of the president’s desire to avoid a major fight over a Supreme Court vacancy. Avoiding a fight is good for Democrats, too. A nasty fight over the Court would threaten to overshadow the Libby-Rove-DeLay-Frist investigations, which make for good TV for Democrats only 11 months away from the next set of midterm elections.

Michael Negrón is a 2L and was born on a cold and gray Chicago morning. The above article contains some impressionistic accounts of events that did not quite happen exactly as described but remains nonetheless faithful to actual happenings. In the process of writing this article, he learned that the ‘o’ in his last name is supposed to be accented.

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