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Tuesday, September 13, 2005

"Super-stare decisis": "a term that hasn't found its way into the Supreme Court opinions yet"

Yup, America now has proof that Mrs. Roberts didn't raise no fool, and her boy John saw Sen. Specter's big question a'comin' long before today's confirmation hearing session.

Sen. Specter confirmed that his earlier coinage, "super-precedent," was indeed drawn from Fourth Circuit Judge Michael Luttig's solo opinion in the Richmond Medical Center case, as I'd speculated here and here. When Sen. Specter reared back, wound up, and threw his best pitch — "Do you think, um, that the cases which have followed, um, Roe fall into the category of a 'super-stare decisis' designation?" — Judge Roberts' eyes veritably twinkled and the corners of his mouth quirked up just a bit, but he just politely put out his bat and let the ball rocket back off it, thence smashing Sen. Specter's foot and skipping on through the gap between first and second for a solid single: "Well, it's a term that hasn't found its way into the Supreme Court opinions yet," quoth the nominee gently.

The remainder of Judge Roberts' answer then essentially ignored this bastard formulation of Sen. Specter. That is to say, Judge Roberts didn't go for extra bases, as he might have with a follow-up like this: "If I were to try to create such a new concept of 'super-stare decisis,' I'd have to persuade the other Justices to at least partially overrule all of the existing precedent on precedent to the effect that any precedent may, under proper circumstances, be reconsidered and, when appropriate, overruled. If you want to make some decision absolutely immune from being overruled, Senator, the way to do that is with an amendment to the Constitution. Have at it."

I'm enjoying watching the re-broadcast of today's proceedings — not because I expect to learn anything significant about Judge Roberts, the senators, or the law, but because it's just a joy, from a purely professional standpoint, to see him perform. To thoroughly mix my sports metaphors, it's like watching a bullfight with a dozen bulls in the ring at once, with the world's best matador deftly avoiding them.  And these guys just keep going for the cape, going for the cape. [Edit: See update below — Beldar] You can almost hear Judge Roberts thinking to himself after each answer, "¡Olé!" Often the great beasts will thunder past Judge Roberts' nimble answer and mumble on for another thirty or forty seconds with their internal momentum, but then they stumble to a stop without actually asking another question. At that point Judge Roberts maintains his polite smile and keeps his mouth closed, until they rumble back around, work up another gallop, and manage to squeeze out another question (typically mangled and on an altogether different topic). Whereupon again: ¡Olé!

The bullfight metaphor breaks down in that Judge Roberts isn't likely to administer a killing blow to any of the bulls distinguished members of the Senate Committee on the Judiciary. He'll just let them exhaust themselves. Eventually they'll stop bouncing off each other and the walls, and they'll collapse into the dust, with their eyes crossed, their muzzles flecked with foam, and their shoulders covered with sheets of sweat. Panting, they'll nod their massive, weary heads as their own aides whisper to them, "Brilliant, Senator, you were simply brilliant." And El Matador will walk out of the arena slowly, his back straight and head high, nodding discretely to the large majority of the crowd who're showering him with well-earned roses, cheers, and applause. His modest, dark uniform will still be pristine, and like magic he'll avoid stepping in any of the heaps of manure scattered around the arena. ¡Magnifico!


UPDATE (Wed Sep 14 @ 1:30am): To be both more accurate and more true to the matador metaphor, rather than saying "the world's best matador deftly avoiding them," I should instead have said "deftly engaging them while always dancing clear of their horns." He's not necessarily side-stepping; his answers always, always evidence his comprehension of the question, and his answers always engage the question to at least some degree. The cape always touches the charging bull; and he's never running to hide behind the wooden barriers. Indeed, that's why his performance reminds me particularly of a matador: he has the confidence and the mental agility to let the bulls get close enough that he can feel their snorting breath as they thunder past, but no matter how hard they try, they always miss him by just an inch or two. And it's such an elegant dance! Doubtless from his hours and hours over years and years of preparing for and subjecting himself to judicial questioning in oral argument (by and large from much smarter folks than these senators!), he's developed the ability to speak fluently, in well-composed, verbally punctuated paragraphs; he almost never stumbles or stutters; he's never at a loss. Everyone in the room knows he's the smartest guy there — but he's not acting like he knows that.

Posted by Beldar at 08:54 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to "Super-stare decisis": "a term that hasn't found its way into the Supreme Court opinions yet" and sent a trackback ping are listed here:

» Wednesday Specials from Cafe Oregano

Tracked on Sep 14, 2005 5:06:34 AM

» Democrats shift focus in court fight from Unpartisan.com Political News and Blog Aggregator

Tracked on Sep 14, 2005 8:16:56 PM

» Jedi Master from Who Can Really Say?

Tracked on Sep 15, 2005 8:55:40 PM


(1) Boger made the following comment | Sep 14, 2005 12:20:09 AM | Permalink

He is one affable, cool dude. The organizing principle of his mind is unreal.


(2) Francis made the following comment | Sep 14, 2005 2:52:40 AM | Permalink

I like your metaphor comparing Senators to bulls, it seems so appropriate given the ahh end product that both senators and bulls leave behind in the field/senate record

(3) ELC made the following comment | Sep 14, 2005 11:45:26 AM | Permalink

"Super-stare decisis". Just a rather odd way of saying, "I and my political and financial supporters really, really, really like that decision." No?

(4) Iago made the following comment | Sep 14, 2005 12:11:29 PM | Permalink

It has been remarked by everyone I know who watched the hearings (and now you, Beldar) how obvious it is that Roberts is clearly smarter than everyone asking him questions. In my personal experience, it's the dominant observation.

(5) Sgt. Andy made the following comment | Sep 15, 2005 8:09:25 PM | Permalink


The matador reference is certainly on point, but to be more accurate, consider the old Bugs Bunny cartoon with Bugs as the matador - given Kennedy's performance today concerning the EEOC memo, I can only envision the poor bull, seated on his hindquarters with a circle of tweeting birds and stars circling his head, as the triumphant Bugs receives the adulation and tossed roses of the crowd. Soon-to-be-Chief Justice Roberts showed a depth of humor that his attackers just don't fathom, and that those of us in the old, conservative Looney Tunes gallery can appreciate far beyond the Left's understanding!


(6) Peter made the following comment | Sep 15, 2005 8:48:39 PM | Permalink

No, the matador analogy is all wrong. In a bullfight the bulls at least theortetically have a chance.

This is more like a Jedi fighting against a dozen Storm Troopers. They're firing their blasters at him, and he's deftly deflecting each attack with his light saber. We all know the Storm Troopers never have a chance, and we're never proven wrong. Roberts is more Jedi Master than bullfighter.

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