(1) Why do Senators give speeches instead of asking questions?

Consider Dahlia Lithwick's description of Judge Roberts' confirmation hearing in Slate this past Monday (full text: http://www.slate.com/id/2126131/entry/2126220/):

[T]oday's hearings are not about the candidate. They are about the majesty and superiority of the Senate. Sen. Ted Kennedy, D-Mass., describes these proceedings as a "job interview with the American people." But in what solar system would a four-day job interview include a solid day in which the interviewer talks about himself? "The level of self-congratulation here today leaves the room airless[.]

In the words of the musical Evita, Biden's "act hasn't changed much" since 1987. Lani Guinier, Bill Clinton's first nominee for Assistant Attorney General for Civil Rights, said of Senator Biden in her book, Lift Every Voice (1998), at 43:

Senator Biden liked the limelight, as long as he was portrayed in a dignified way. During Supreme Court nominations, he liked to ask lengthy and often convoluted questions about arcane legal theories.

BIDEN: Let me conclude..

ROBERTS: Senator, could I...

BIDEN: I still have the floor -- and I'll yield to you, since you can speak after the clock's out. I can't, OK. I'm sure you understand that. And I'm sure if I'm ever before the Supreme Court, you'll give me more time. You won't interrupt me.

(2) Why can't Roberts just answer a direct question?

There are two reasons why Roberts sometimes sounds like a model of evasion.

The first reason is a product of the aforementioned Bork hearings. Supreme Court candidates remember (or are reminded) that the 1987 Bork hearings were full of substantive answers from the nominee -- a nominee who was then defeated because a Senate controlled by Democrats agreed Republican Bork was unfit for the Court because of his answers.

The second reason is that all Senate confirmation hearings to a large extent are about demeanor rather than substance. A Republican president will nominate different people than would a Democrat. Both parties understand this and largely accept this fact of political life.

Democrat Robert Reich, Clinton's Secretary of Labor, explained how his advisor taught him to deal with Senator's questions during his 1993 confirmation hearing in his book, Locked in the Cabinet, at 37. This exchange will sound familiar to Robert's hearing watchers:

"This hearing isn't designed to test your knowledge. Its purpose is to test your respect for them. ... You try to show them how smart you are, you're in trouble."

"But I have to answer their questions, don't I?"

"Yes and no," he says. "You have to respond to their questions. But you don't have to answer them. You shouldn't answer them. You are not expected to answer them. ... This is all about respect. Your respect for them. ... They are not interested in an answer. They are interested in how you respond. ... If they are nasty, don't be nasty back."

Senate Republicans waved through President Clinton's Supreme Court nominees, Justice Ginsburg in 1993 and Justice Breyer in 1994, mostly because the GOP did not have the votes to do otherwise. Senate Democrats enjoyed a 57-43 margin in 1993-94, a margin further undercut by the presence of both Arlen Specter (R-PA) and Jim Jeffords (R-VT) as nominal Republicans.

Republicans controlled the Senate, 53-47 in 1986 when Justice Scalia was confirmed while Democrats ruled 55-45 in 1987 when Bork was rejected. Had their nomination years been switched, we would be hearing about Justice Bork's well-written Supreme Court opinions and reading Antonin Scalia's books.

Bush I nominees David Souter and Clarence Thomas each had to be confirmed a Senate controlled by Democrats. A combination of stealth nominees and identity politics was bound to occur had any Republican been president under such circumstances.

Add President Bush I's aggressive avoidance of all things Reagan, coupled with ideologically divided Senate Republicans, and one realizes that getting one conservative out of two nominees under such circumstances should be regarded as an unexpected achievement. (Do not forget that Justice Thomas testified that he was opposed to official English laws at his confirmation hearing.)

(4) Democrats, Liberals and Roe v. Wade

The Supreme Court has been critical to the Democratic Party's agenda since the 1960's in a way that it has not been for the Republicans. This dependence on the one non-elected branch of government has hurt the Democratic Party in any number of ways, primarily by giving too many of its elected officials a tin ear for the art of political persuasion (e.g. bilingual education advocates were actually taught to respond to complaints their programs weren't teaching English by citing "court precedent." )

When Al Gore's own campaign manager Donna Brazile feels she must apologize to the New York Times because "(e}ven I have trouble explaining to my family that we [Democrats] are not [all] about killing babies," something is clearly out of whack with the party's message.

Public perception of the Democratic Party is that Democrats believe that Roe v. Wade is the only reason for our Constitution to exist.

Roe v. Wade is the metaphorical elephant in the Judiciary Committee hearing room -- but no longer for this nomination, but the next one.

(5) Roberts' Nomination as "Spring Training."

Roberts, if confirmed, would now replace the late Chief Justice William Rehnquist, not the retiring Associate Justice Sandra Day O'Connor. Thus, a conservative is now simply replacing another conservative. A possible anti-Roe vote is replacing a proven anti-Roe vote. Because little appears to be at stake, it is hard to gin up the troops on either side.

This is why an unnamed organization told CNN last night that they are merely showing the flag against Roberts. This confirmation battle has been reduced to a drill -- by both sides. Next time, when it is possible nominee for the O'Connor seat will be markedly more conservative, and a swing vote is at stake, the real battle begins.

CNN's unnamed source promised "Armageddon" when the person who will replace Sandra Day O'Connor is announced, sight unseen and record unexamined.

Baseball teams go to Spring training and football teams go to training camp to get back in shape and learn the plays. The regular season follows, with a major up-tick in intensity.

Watch for one more test run during the Roberts confirmation process -- a demand by Senate Democrats for still more Roberts' documents accompanied by the threat of a filibuster of his nomination until those documents are produced. I expect Democrats will give way after having made their point and created another precedent for the next Bush Supreme Court nominee to hurdle.

(6) Outside Groups Will Howl For Roberts' Hide Because They Must

The only people no longer practicing, but playing for real right now are the outside groups, like the National Organization for Women, the Mexican American Legal Defense and Education Fund, etc. These groups are not reliant on the financial support of a broad segment of the public but depend instead upon revenue from foundation grants, corporate gifts and the proceeds from lawsuits.

These groups don't "do" democracy, even though they are often confused with the base of the Democratic Party. They expect to win by name calling and stampeding the RINOs (the moderate Republicans In Name Only) at the right time. They want to see Senator Chuck Schumer (D-NY) yell and Senator Durbin to pontificate. Any Democratic Senator who dreams of being president one day (all Senators of both parties hum "Hail to the Chief" while brushing their teeth each morning) will pay attention.

Thankfully, many of these same groups will also be fighting to renew and expand bilingual ballots this Fall, given that the Voting Rights Act is up for renewal. They face at least a two-front war.

In July, I predicted the first nominee to replace Justice O'Connor would lose, given the correlation of forces. Now that Roberts, if confirmed, would replace Justice Rehnquist rather than Justice O'Connor, I stand by that prediction.

The correlation of forces is such that Senate Democrats simply must defeat any Bush nominee to the right of Ted Kennedy for O'Connor's seat, at least the first time around to show their spine and discourage Bush from keeping his main campaign promise (appointing conservative Supreme Court Justices) and thus harming the Republican Party's future electoral prospects.

(7) What Do I Think of Roberts Now?

The man is a brilliant blank slate who is going to be confirmed. While good on foreign law (as I e-mailed you yesterday), he seemed to be on both sides of the commerce clause issue and frankly opposed to legislation removing jurisdiction from judges over certain issues ("court stripping").

Yet, "court stripping" was the reason organized labor could get off the ground. The Norris-LaGuardia Anti-Injunction Act of 1932 forbade judges from intervening in strikes, thus taking away business' ability to get an injunction from a federal judge.

William Rehnquist was willing to be an outsider, both in his clothing and his legal reasoning. As an employee of President Nixon's buttoned down Justice Department, Rehnquist eschewed a Haldeman crew cut for a pink shirt with clashing psychedelic tie, and Hush puppies for a 1971 meeting with the President.

Rehnquist was but one of two dissenters to Roe v. Wade. Bob Woodward's gossipy book on the Supreme Court, The Brethren, portrayed Rehnquist as a loner through much of the 1970's. Today, many of those lonely dissents are now the law of the land.

It is hard to picture Judge Roberts as a determined outsider like Rehnquist. From his record, we know that when Roberts worked for Ronald Reagan, he was a Reganite. When Roberts then worked for a Washington law firm, he was not quite such a Reaganite.

What does a man do when he finally gets a job for which he has spent his entire adult life campaigning? We are likely to find out.