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.

Early on during the session, to use the best example, Sen. Charles Grassley (R-Iowa) asked Justice Scalia about the use of international law in the American judicial system. Now, if the justice were inclined to stir up trouble he would have proudly reiterated his well-known position that he is adamantly opposed to using international law to interpret the Constitution. And if the justice were merely willing to be helpful he might have told lawmakers that the topic is one in which he and Justice Breyer have frequently clashed. Instead, Sen. Grassley got a stern "I'm not prepared to answer that kind of question" answer. Case closed. "Let's move on," the senator wisely said.

This wasn't a chat between and among equals in Washington; this was a convivial chat between the landed gentry and the tenant farmers. And, from the perspective of the justices' performances, there was only one component of it which disappointed me. Early last June, in a dissent, Justice Scalia blasted Congress for writing so many ambiguously-worded statutes, which of course makes the job of a federal judge that much more difficult. At the time, I wrote about Justice Scalia's dissent in Sykes v. United States here. This is what Justice Scalia wrote just four months ago (and I agree with every word):

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step--indeed, I think it would be highly responsible--to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

At least three times on Wednesday, Justice Scalia had an opportunity to directly confront the senators about his feelings on this matter. And on each of those occasions he declined. Here was a grand opportunity to "educate" the American people about one of the reasons why judges are peceived to be "activists"-- and yet the justice graciously let the moment pass. Perhaps he wanted to be a polite guest. Perhaps he figured that he wouldn't bring up the Sykes case if the lawmakers didn't. Either way, it was a lost opportunity to gently force the Senate (and its constituents) to confront their own key roles in undermining the judiciary.

The Court may be less popular these days than it has been in the past. But especially when compared with the Congress it's an institution that clearly has its shit together. That was evident Wednesday, more evident anyway than it is when we follow judicial confirmation hearings on television. Me? I'll forgive both justices their measured lack of candor in a room full of politicians. I know that these two judges are honest when we need them to be and where it counts the most; when they are writing their decisions and explaining to the rest of why they think the law is what it is.

Image credit: Evan Vucci/AP

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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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