Sen. Tom Coburn (R-Okla.), the histrionic legislator famously caught
contemplating a crossword puzzle during the 2005 Supreme Court confirmation hearing for John Roberts, wants you to know that he's not going to go quite as easy on nominee Elena Kagan when she appears later this month before the Senate Judiciary Committee.
Turns out the senator is fed up with Supreme Court nominees who fail or refuse to directly answer questions posed to them during the long public sessions that make up the bulk of judicial confirmation hearings. He believes that even the most noble court wannabes ought to be judged by their past professional records and judgments and not by the soft-shoe words they use before the committee with their future (and lifetime) employment on the line.
Thursday on the floor of the Senate, Coburn said: "I'll finish by saying that consideration of any judge in the future in terms of this senator is going to be borne out by what they've said before they got to the committee, not what they say to the committee, because we can no longer, as a body, trust what the nominees say in committee."
Coburn is partly right. Each of the three nominees he has judged for the Supreme Court have indeed been less than candid about their judicial philosophies and their political inclinations. They have pulled their punches. They have refused to share with the public, or apparently even Coburn, their views about core constitutional principles and standards. They've employed the now-famous "Ginsburg Rule
" to stop persistent questioning from senators who want to know exactly who and what they are voting upon. The "talk to the hand" approach from nominees has been bipartisan and unanimous.
Before he became chief justice of the United States, for example, John Roberts coolly lectured to Coburn and Company about being a neutral
"umpire," calling only balls and strikes, before he was voted onto the court. Less than five years later, however, Roberts led the court to its most "activist" ruling in a generation, its decision early this year in the Citizens United
case, which gutted the McCain-Feingold campaign finance law and threw open the floodgates to corporate domination of campaign ads. Indeed, as legal analyst and Supreme Court author Jeff Toobin pointed out
a few months ago, the chief justice has been anything but neutral or even much of an umpire:
In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than [Justice Antonin] Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
Yet, after putting down his crossword puzzle back in September 2005, what did Coburn ask of the nominee? He mustered up this question
for his ideological soul mate: "So the only question I would have for you is this one final -- and I will finish, I hope, before 10 minutes are consumed. Where'd our law -- would you teach the American public where our law came from? I mean, there was law before the American Revolution. Where did our law come from? Where'd it come from?" Ever able to play the straight man, Roberts replied: "Well, before the revolution, of course, we were under the British legal system." Good enough. Coburn voted to confirm Roberts.
Meanwhile, before he
became a Supreme Court justice in January 2006, staunch conservative jurist Samuel Alito stonewalled the committee for two days, offering even fewer nuggets
of insight and candor than did Roberts. At the time, however, Coburn didn't ask for a more detailed explanation. He didn't complain about inconsistencies. Instead, he delivered to nominee
Alito the following doozie: "A lot of times in these hearings you don't get a chance to say why would you want to be a justice of the Supreme Court of the United States? Why would you want that responsibility? Why do you want to go through this process to be able to achieve that position? Can you tell the American people why?" Said Alito: "I think it's a chance to make a contribution. I think it's a chance to use whatever talent I have in the most productive way that I can think of." Good enough. Coburn voted to confirm Alito.
It clearly didn't bother Coburn when both Chief Justice Roberts and Justice Alito donned their robes and quickly turned into precisely the sort of conservative activists their patrons had hoped they would be. The nomination process was not "broken down" back then. But apparently it is now, he says, now that a Democratic president is nominating jurists like Sonia Sotomayor and Elena Kagan to the court. So a senator who gleefully kowtowed to the court's conservative nominees -- when he wasn't futzing with the crossword -- is proudly declaring he's now out to tag its progressive ones.
The senator's specific charge against Sotomayor is that she was less than candid and consistent with him about her views of the use of international law in domestic jurisprudence. "Her statements before she comes before the committee are totally opposite of what she tells the committee and then what she's done since proves that her testimony before the committee was totally meaningless," he said Thursday. "We have to change the process."
There is irony on top of hypocrisy here -- or maybe it's vice versa. Coburn is angry with Justice Sotomayor -- and threatening to take it out on nominee Kagan in three weeks -- even though he took a much different approach to Sotomayor's confirmation hearing than he had with the two Bush-era appointees. He is angry even though Sotomayor's answers to him were arguably more complete than were the answers given by her predecessors to Democratic senators. And he is angry even though the court's new conservatives are at least as ideologically driven as the court's new liberals are bound to be.
Last summer, for example, Coburn's first question to nominee Sotomayor was straightforward
and legitimate and of a sort altogether different from the cream puffs he had delivered to nominees Roberts and Alito. "You've been asked a lot of questions about abortion," Coburn asked the wise Latina. "And you've said that Roe v. Wade
is settled law. Where are we today? What is the settled law in America about abortion?" Said Sotomayor: "I can speak to what the court has set in its precedent." Good enough. Coburn voted against Sotomayor and almost certainly will vote against nominee Kagan as well.
Is Coburn angry that nominee Sotomayor was just as deft in blocking his questions as nominees Roberts and Alito were in blocking legitimate queries from Democratic committee members? Is he angry that he got in trouble, and rightly so, for mocking
Sotomayor during his questioning and comments period? Is he just angry that another liberal/progressive is going to make it onto the court? Perhaps someone ought to ask him.
In the meantime, let's all agree that the good senator from Oklahoma is unlikely to waste his time or ours by asking Kagan to explain to us what law governed the colonies at the time of the Revolution.