Shorter, more truthful, Russ Feingold

Beldar's quasi-fictional paraphrase of Sen. Russell Feingold's questioning on Tuesday of Chief Justice nominee John G. Roberts, Jr. and his answers, if Sen. Feingold had been temporarily stricken with the magic that affected Jim Carey's lawyer-character in the 1997 movie Liar Liar:

Mr. FEINGOLD: I demand that you immediately violate the absolutely clear, unconditional prohibition in section 3A(6) of the Code of Conduct for United States Judges by commenting here on the merits of actual, specific cases and motions that are still pending before you as a judge.

Judge ROBERTS: I can't. That would be unethical.

Mr. FEINGOLD: But I wrote you a letter telling you in advance that I was going to demand that you be unethical. So c'mon, now, be unethical! Chop-chop! Break the most basic rules designed to promote judicial impartiality and public confidence in the judiciary, right here for C-SPAN's cameras!

Judge ROBERTS: No, sir, I won't.

Mr. FEINGOLD: In the name of my most loudly barking moonbat constituents and contributors, I order you to trash your ethics! Regardless of my smarmy façade of mock-respect, I'm going to persist in asking these questions that, if you did answer them, would demonstrate beyond any doubt that you're unfit to be any kind of judge anywhere.

Judge ROBERTS: With due respect, no.

Mr. FEINGOLD: I'm hugely surprised and disappointed that you won't comply with my demand that you commit an offense which would immediately and appropriately prompt the U.S. Judicial Conference to sanction you, and probably prompt us here in the United States Senate to convene a hearing to impeach and remove you from your present office. But I'll move on (continuing to speak incredibly swiftly, because I want to squeeze in the largest number of similarly chickensh*t argumentative questions that will possibly fit in between my smirks for the camera).

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UPDATE (Wed Sep 14 @ 9:00am): I've quoted the lengthy actual transcript segment that I'm parodying above in the first comment below. Friends and neighbors, please understand this, which I'd hate to see get excused or confused by my parody above: It is not remotely a "close question" whether it would have been an ethical violation had Judge Roberts answered these questions, and Sen. Russell Feingold knows that just as well as he knows how to find the TV cameras.

The third hyperlink in my parody post above (repeated here) is to a very detailed post I wrote back in 2003, when U.S. Circuit Judge Harry Pregerson of the Ninth Circuit violated the same provision of the Code by commenting to a newspaper reporter about the then-pending rehearing en banc that eventually reversed a Ninth Circuit panel he'd been on, thereby allowing the California recall election that put Gov. Ahh-nold into office. That post also includes hyperlinks to discussions by other legal scholars, including Eugene Volokh, Hugh Hewitt, and Howard Bashman, of Judge Pregerson's inexplicable conduct. Recall also that the federal district judge who presided over the initial trial of the government's antitrust lawsuit against Microsoft was publicly rebuked and disqualified from further proceedings on remand for violating this rule. There are implementing federal statutes involved; there is interpretive precedent confirming that violation of this provision may be entirely adequate constitutional grounds for the Judicial Conference to strip a sitting judge of his/her power, and even revoke his/her pension, and that a violation may indeed be a sufficient constitutional basis for Senate impeachment despite federal judges' normal expectation of life tenure.

The underlying matter that Sens. Feingold and Schumer are fussing about is something that I'm certain has been routine and unchallenged with respect to dozens of past Supreme Court nominees by Presidents from both parties; heck, Justices Douglas and Fortas were practically cabinet members before, during, and after their appointments, going way beyond job interviews! If the Administration is guilty of some impropriety by interviewing him, then so is every Democratic senator with whom he's had private "courtesy interviews," including, I think, every Democratic member of the Judiciary Committee.

If Sens. Feingold and Schumer genuinely believe that Judge Roberts breached some other ethical canon by cooperating with Administration interviews for a potential Supreme Court opening while he was still a sitting judge hearing cases involving the United States as a party (which I'd guess is, oh, maybe 95 percent of the DC Circuit's docket!), then they have at least two remedies. First, they could file a formal complaint with the Chief Judge of the DC Circuit. Second, they could attempt to institute impeachment proceedings in the Senate. Neither of those things will ever happen, because their entire insinuation that there was any ethical impropriety by Judge Roberts is absolutely bogus. I have zero doubt that the Chief Judge of the DC Circuit would immediately dismiss any formal complaint as frivolous, and that by the end of the second press conference, any Senate impeachment proceedings would be blatantly obvious as an unprincipled witchhunt that would have put even that other senator from Wisconsin (whose name starts with a "Mc" and ends with a "Carthy") to shame. So instead, Sen. Feingold just engages in this cheap, smarmy, and insulting conduct — repeatedly asking questions and making insinuations that, if done in a court proceeding, would have landed him in jail for contempt and possibly have threatened his own law license.

But even if we give Sens. Feingold and Schumer the benefit of the doubt on their original accusation — that is, regardless of whether Judge Roberts shouldn't have participated in the interviews, or should thereafter have recused himself from all cases in which the United States was a party — there is absolutely no possible doubt that Judge Roberts discussing that subject in response to Sen. Feingold's questions about a specific case would be a clear violation of Canon 3A(6).

So yes, there is something unethical going on in these proceedings — but it's Sen. Russell Feingold who's doing it, not him who's exposing it. Parody aside, "disgust" is far too mild a word for my reaction.