By George F. Will
Tuesday, September 27, 2005
Dianne Feinstein's thoughts on the nomination of John Roberts as chief justice of the United States should be read with a soulful violin solo playing, or perhaps accompanied by the theme song of "The Oprah Winfrey Show." Those thoughts are about pinning one's heart on one's sleeve, sharing one's feelings and letting one's inner Oprah come out for a stroll.
Feinstein, like many Democrats, has interesting ideas about what Supreme Court justices do, or should do. In her statement explaining to fellow members of the Judiciary Committee why she opposes confirmation of Roberts, she began with a cascade of encomiums, describing Roberts as "an extraordinary person" with "many stellar qualities," including "a brilliant legal mind," "a love and abiding respect for the law" and "a sense of its scope and complexity as well." Her next word was "but."
She was, she said, disappointed when Roberts was asked by another Democrat whether "he agreed that there is a 'general' right to privacy provided in the Constitution." Roberts replied, "I wouldn't use the phrase 'general,' because I don't know what that means."
Well, what does it mean? Roberts had clearly affirmed his belief that the Constitution protects privacy in various ways that amount to establishing a right to privacy in various contexts. But what would make such a right a "general" right? Do Americans have, say, a constitutional privacy right to use heroin in the privacy of their homes? No. To sell prostitution services in the privacy of their homes? No again.
The question is not just: Does Feinstein, evidently a believer in a "general" right to privacy, think, as a rigorous libertarian might, that such heroin use and prostitution should be permitted ? Rather, the question is: Does she think the Constitution protects those activities as rights? If not, in what sense is the privacy right "general"?
But the crux of Feinstein's case against Roberts concerns not the adjective "general" but his general deficiency of empathy. Specifically, she faults his failure to talk to her "as a son, a husband, a father," and to understand "the importance of reaching out."
Exploring Roberts's "temperament and values," Feinstein asked him about "end of life" decisions, urging him to talk to her "as a son, a husband, a father." Instead, she says disapprovingly, he "gave a very detached response."
Now, some people might think that detachment is a good thing in a judge -- that it might be the virtue called judiciousness. Never mind. Feinstein's real worry is, she said, Roberts's failure to explain how he planned to be "in touch" with "the problems real people have out there." She was dismayed by the inadequacy of his discussion of "the importance of reaching out to communities that he normally would not be in contact with, and spending time to understand the problems that average people face, in my communities of Hunters Point, of East L.A., of some of the agriculture areas of our state."
Feinstein said, "His answer failed to recognize the point of the question and the concern about staying in touch with people who have different life experiences." Well, what was the point of the question?
At the risk of revealing a serious empathy deficit, one might ask: What is the importance of a Supreme Court justice's understanding the problems of lettuce farmers in California's Central Valley? How, in the course of performing his judicial duties, does a justice reach out to, and stay in touch with, those farmers? Perhaps Justices Ruth Bader Ginsburg and Stephen Breyer, two of Feinstein's pin-ups, routinely do the empathetic things that Roberts, Feinstein has decided, does not know how to do, or is too emotionally impoverished to do. But how does any of what Feinstein was talking about pertain to judging?
Remarkably, Feinstein was reading her statement. So her mare's-nest of inapposite words and unclear thoughts cannot be excused as symptoms of Biden's Disease, that form of logorrhea that causes victims, such as Sen. Joe Biden, to become lost on the syntactical back roads of their extemporaneous rhetoric.
Feinstein should have been more fluent because she was talking, as senators are wont to do, about . . . herself. Some of her "questions" to Roberts were a familiar form of preening, of moral exhibitionism. They were an example of how liberals compete, mostly among themselves, in the sensitivity sweepstakes. She might as well have simply said: Look here, Roberts, are you or are you not in my league as a world-class reacher-outer to, and a stayer-in-touch with, plain people?
Cue the violin.