A Day of Firsts, Overshadowed

By Dana Milbank
Tuesday, September 13, 2005

Yesterday's opening of the John Roberts confirmation hearings was a time for historic firsts.

Sen. Charles E. Schumer (D-N.Y.) made 49 first-person references in a 10-minute statement that was, ostensibly, not about himself.

Sen. Tom Coburn (R-Okla.) showed exceptional emotional versatility, working a crossword puzzle during the hearing and then choking back a sob while making a prosaic statement about partisanship.

Roberts delivered what may have been the shortest opening statement by a modern Supreme Court nominee -- less than seven minutes, including the thank-yous and two baseball metaphors.

But in the end, the confirmation kickoff was anticlimactic: As word spread through the gallery midway through the session that FEMA Director Michael D. Brown had quit, reporters knew the Roberts story would, once again, be a sideshow. Roberts may well be confirmed as chief justice of the Supreme Court, but in the case before the court of public attention, in re: Katrina v. Roberts , the defendant doesn't have a chance.

With the nation distracted by the hurricane and flooding down south, neither left nor right nor middle displayed much energy. By 10:30 a.m., only 170 people had shown up for public tickets to witness the noon proceedings -- making unnecessary the plastic cordons and the queue signs leading almost all the way to Union Station. Outside the Russell Senate Office Building at 11 a.m., a grand total of 21 people demonstrated against Roberts, chanting: "Two-four-six-eight, separation of church and state!"

Even inside the storied Senate Caucus Room -- scene of the Teapot Dome, McCarthy and Watergate hearings -- some were preoccupied with Katrina.

Sen. Patrick J. Leahy (Vt.), the committee's ranking Democrat, led off with an observation that the hurricane was "a tragic reminder of why we have a federal government." Sen. Edward M. Kennedy (D-Mass.) said, in one of three references, "Katrina tore away the mask that has hidden from public view the many Americans who are left out and left behind."

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), opening the hearing, called the confirmation "perhaps the biggest challenge of the decade." But at times it appeared to be a swearing-in ceremony. Before the hearing, Kennedy shook the hand of Jane Roberts and said to the nominee's wife, "Congratulations."

Sen. Joseph R. Biden Jr. (D-Del.) seemed to be taking confirmation for granted when he listed a range of issues likely to come before the court and told Roberts, repeatedly, "You will rule on that." In the park across the street from the Russell Building, a modest but confident group of conservatives sipped from water bottles labeled "Roberts YES."

Sen. John W. Warner (R-Va.), who had the job of formally introducing Roberts to the committee, offered some advice to the nominee's playful young son, Jack: "You can wiggle a little bit. Don't worry."

As it happens, that was similar to the advice GOP members offered. In their 10-minute opening statements, they repeatedly urged him not to answer questions about his views.

"Don't take the bait," suggested Sen. John Cornyn (R-Tex.). Sen. Orrin G. Hatch (R-Utah) said it is "patently false" that Roberts must provide answers. Sen. Jon Kyl (R-Ariz.) thought it could be "unethical."

Democrats were almost as uniform in the opposite view. "It is our duty to ask questions," Kennedy replied.

"It is not undignified to ask questions," submitted Sen. Russell Feingold (D-Wis.).

"It is our obligation to ask and your obligation to answer," Schumer said.

Roberts sat still, shoulders slightly rounded, moving his head thoughtfully from side to side, and keeping a polite gaze on each speaking senator; after three hours of this, the nominee shamed the lawmakers with a brief speech blending jurisprudence and the national pastime. "I will remember that it's my job to call balls and strikes and not to pitch or bat," he said.

Specter, determined to keep the proceedings on schedule, even cut himself off at the 10-minute mark, saying, "I'm down to 10 seconds . . . that's it."

But there were unscripted moments. Cornyn and Sen. Sam Brownback (R-Kan.) spent a chunk of the afternoon whispering and joking. A woman in a 19th-century hat and dress sat in the back of the room wearing a "Women for Roberts" sticker. After Feingold predicted longevity for the 50-year-old nominee because he looks "healthy," Coburn, a doctor, said that cannot be predicted without a "physical exam or a family history" -- neither of which is on this week's hearing schedule.

A television camera behind Coburn caught the senator working a crossword puzzle. But Coburn went from detachment to emotional overdrive when it was his turn to talk; seconds after asserting that "a super-legislator body is not what the court was intended to be," he paused and wept.

Colleagues looked alarmed. One GOP committee aide put his hand to his mouth. It was the biggest Senate choke-up since Sen. George V. Voinovich (R-Ohio) cried while opposing the nomination of the ambassador to the United Nations -- and Coburn has to get through three more days of hearings.

© 2005 The Washington Post Company