The opening statements by the various senators did not, when read, seem to break any new ground. It still remains a surpassingly odd view of constitutional interpretation to think, for example, that anyone who has the temerity to think that there are limits on Congress’s power to legislate under the Commerce Clause should be chastised for showing disrespect for Congress, which earns it when prominent senators speak such silliness from their high positions. And it remains as foolish as it ever was to think that a vote on any issue, including one as important as abortion, should be regarded as a litmus test on the vote. Roberts is surely correct to follow the Ginsburg line, I won’t prejudge cases that I may be called on to decide, and should leave it at that no matter what the provocations he faces.

In the end he was right also to utter platitudes about being an umpire, not a player, and about deciding cases with an open mind and without fear or favor. More importantly, the model of settled expectations (which has no constraint on us academics) is appropriate for justices of the Supreme Court, but it is a presumption, not an hard and fast rule. Brown v. Board of Education is just the type of case that merits a departure as he said. So far so good. Just imagine what anyone would have said if he had done otherwise! But remember, he has said only what any nominee of any philosophical persuasion should state. In doing so, he only reinforces my original position that the whole direct confrontation task is a waste of time in any event, save for this one point. Sitting there alone, and without writing a note, gives the aura of self-confidence that should play well.

So I engage in that most dangerous of speculation, and assume that he has already come out well in the game of crossed swords that is being conducted, out of earshot, as this is written. We are long past the days where any nominee can expect unanimous support for a graceful Congress. But so long as this outcome does not look in doubt, it shall remain difficult to find it in reruns. I feel true to my position on the hearings precisely because I have not seen them live.