Fun and Games

It was that awkward period of my life between wild and crazy youth and married with children. A friend and I would sit at a table in a quiet bar and get pleasantly lubricated while playing a game we called "pick a subject and a side." Neither the "subject" nor the "side" mattered very much; the point was to generate a debate and get a little intellectual stimulation. We each vigorously asserted arguments, not because we believed them, but simply because the other guy staked out an opposing view.

That game is not much different from what lawyers do on a regular basis (preferably without the lubrication.)

I'm reminded of this game by watching the hearings on Judge John Roberts' confirmation as Chief Justice of the Supreme Court. Senators are reading memos and briefs written by Attorney John Roberts when he worked for the Government and while he was in private practice and using the positions he advocated as evidence of "what he really thinks." Most of the Senators doing this are lawyers themselves and, I suspect, know that this is unfair and misleading.

I suspect that the Senators also know that until there is a real "case", with specific facts and extensive legal research and fully developed arguments on all relevant issues, a judge can't predict how he'll rule. And, if a judge sits on a panel of judges, like on the Supreme Court, there's a good chance he won't take a position until participating in the additional debate and reflection within the panel.

What the Senators are doing is playing another sort of game; its called politics.