Mr. Roberts

There was enough hot air in Washington to start another hurricane, as Senator after Senator made empty speeches about the meaning of the judiciary. John Roberts mostly sat there, knowing if he waits patiently a few days, he'll never have to worry about employment again.

The Roberts' hearings are a waste of time. With 55 Republican Senators, unless Roberts screws up, or has some impressive skeleton in the closet, he'll sail through. The only question, if it is one, is will the Dems dare pull a filibuster. Probably not.

Roberts himself appeared properly humble. I wasn't impressed, however, with his analogy of judges to umpires: "Umpires don't make the rules; they apply them." This might make sense in a civil law system, but we still operate under common law. Judges, in essence, do make law, whether they want to or not--especially on the Supreme Court. The analogy breaks down when you realize that no umpire ever refers to a decision another umpire made several years ago to prove he got it right.

Columbus Guy says: As LAGuy knows, the common law is not what anyone is talking about here. Common law is only an interesting and important subset of law, not the bulk of it, at least not in these days of state and federal legislative grandstanding. In fact, it's probably much more a state law function than a federal one.

In any case, it's the idea of a constitution that is being talked about, including the idea of developing policies through democratically elected legislatures (note, those two ideas are themselves in conflict, but in both cases the courts have a duty to defer to some idea beyond their own preferences). The umpire analogy is spot on and will stand through the ages. Its only difficulty is it's a bit, er, common.

LAGuy ripostes: The umpire analogy is rotten not only because it's so weak, but because it's classically been used, in fact, to differentiate between civil and common law.

Roberts (and even ColumbusGuy) knows that Supreme Court members will write opinions that then become the law of the land--this is what common law means. This is their job, whether they like it or not. They will answer questions like "How does the First Amendment apply to broadcasting?" or "How does the Fourth Amendment apply to buses?" etc, etc. And not just question about new technologies, but questions about basic though complex areas that arise under the Constitution, such as who has various war-making powers, or whether the states or the federal government can regulate certain activities.

Once these opinions are published, no matter how much ColumbusGuy may hide his head in his pillow and deny it, they become the law of the land. All those thousands of little "umpires" in the lower courts will no longer simply look in the "rulebook" represented by the latest legislative statutes to determine what the law is, but will need the Supreme Court Reporter for dispositive answers.

Columbus Guy says: There, there, LAGuy, it's alright. If you don't understand what common law is, it's okay. Roberts does, and the country will be just fine.