On Capitol Hill, The Stephen and Nino Show Wows 'Em

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On Wednesday, Justices Breyer and Scalia chatted with the Senate Judiciary Committee about the role of judges and the meaning of the Constitution

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They came. They kibbitzed. They tossed out fluffy platitudes about judicial restraint and constitutional boundaries. They patiently humored their eager hosts on the Senate Judiciary Committee. They were yet again the smartest guys in the room. Justices Antonin Scalia and Stephen Breyer, graying veterans of hundreds of "What's the Judiciary Like?" speeches off the Court, sure gave good witness Wednesday when they came to Capitol Hill to tell lawmakers more about "The Role of Judges Under the Constitution of the United States."

And why not? A lot of people come to the Hill as a witness under subpoena, or the threat of one anyway, or they are otherwise concerned that anything they say may be used against them. Others, like Scalia and Breyer did a generation ago, come to the Committee looking for a job as a judge, hoping to say as much as necessary and as little as possible. These two? They already have their jobs, with guarantees of life tenure, and thanks to the Court's unique ethics rules virtually nothing they could say about the law could ever be used against them anyway.

So the justices talked. And talked. And talked. They out-talked even the usually un-out-talkable Sen. Patrick Leahy (D-Vt.), the committee chairman (who was so giddy at the presence of his two buddies that I thought he was going to spin his chair around). At one memorable point, the two justices even sounded like an act from the Catskills: "Hey, Nino, tell them the story about the bear. You know, the bear." If I ever had dental surgery, and knew that I would not be able to open my mouth for an entire evening, I would love to have dinner with these two. There would never be a silent moment. And at the end of the meal I would strangely have more confidence in the Court than I had when I had sat down.

Here is the link to the blow C-SPAN video of Wednesday's hearing. If you don't have the two-plus hours to spend watching the whole thing, do yourself a favor and skip ahead to the 20-minute mark. You'll miss the introductory comments by Sen. Leahy but you'll be able to spend more time with the give-and-take of the questions. (And note, too, in the spirit of bipartisanship all too rare in Washington that Justice Breyer was seated on the right and Justice Scalia was seated on the right).

The two justices didn't make much news and what little they made is not earth-shattering. Justice Scalia said again that he hoped the "living Constitution" would "die." Justice Breyer reiterated his hesistancy to open up the federal courts, including the Supreme Court, to television cameras. And neither justice tipped his hand about the federal health care law. None of this is revelatory. Justice Scalia did surprise me when he said he would like to see the High Court accept about 100 cases per Term (which would be a step in the right direction). 

But then the justices weren't asked to come to the Hill to make news. They were asked to come largely as props in Congress' resurgent debate over the meaning of the Constitution. Being a Supreme Court justice, however, means you get to be nobody's prop. Sen. Dianne Feinstein (D-Calif.), for example, tried to score political points about women's rights with a pointed question to Justice Scalia about the 14th Amendment. He shot her down in a single sentence. It was an Emily Littela moment. And both justices largely refused to go where a snarky Sen. Lindsay Graham (R-S.C.) wanted to lead them in the debate over federal judicial nominations.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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