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Opening Statement of Sen. Orrin Hatch, Chairman, Senate Judiciary Committee: I would like to welcome all the nominees and their families today. As you are doubtless aware, there are now 8,746 vacancies on the federal bench as a result of senatorial deadlock. Nevertheless, I feel confident that the four nominees from whom we will hear today are all qualified. I am hoping the committee will thus work to confirm all the nominees in that spirit of mutual respect and bipartisanship that makes me proud to be an American. Without further ado, the chair calls upon Mr. Maxwell Morgan, a distinguished legal thinker and nominee to the 6th U.S. Circuit Court of Appeals. The chair recognizes Sen. Feinstein. Sen. Feinstein: Thank you, Mr. Chairman. I just want to ask the nominee … I have spent a lot of time poring over Mr. Morgan’s record — which is not easy, let me tell you, since he has produced no scholarly articles and has never served as a judge — and I wondered if I might just put it directly: Mr. Morgan, can you please tell the committee if you believe Roe v. Wade was correctly decided? Mr. Morgan: I think it is important that I retain an open mind and that I don’t have an opinion on that important case. [FOOTNOTE 1] Sen. Feinstein: Come now, Mr. Morgan, are you trying to tell me that you attended law school in the 1970s and never discussed this case with your classmates or teachers? Mr. Morgan: Um, just to clarify, Senator, I wasn’t at law school in the 1970s, I was working at the Supreme Court then. Sen. Feinstein: Mr. Morgan, you’re telling this committee that you worked in the Supreme Court during the 1970s and never discussed the holding in Roe? Mr. Morgan: Well, that’s the thing, Senator. I was working in the Supreme Court cafeteria in the 1970s. … I did serve Justice Blackmun lunch that day. Fish sticks, as I recall. But we didn’t discuss the case. Justice Blackmun did mention that the tartar sauce smelled a little off that day though. If that helps clarify anything. Chairman Hatch: Um, thank you Mr. Morgan, perhaps we’d best call the next nominee. The committee now calls Sarah Sloane, an outstanding candidate who should be promptly confirmed by this committee. Judge Sloane has been a traffic court judge in Butte, Montana, for the past three years. She received her law degree from the respected online George Harrold Carswell Institute of Social Justice and Golf Course Maintenance, which is hosted by her father-in-law on a server in Denver. As a result of a massive computer virus last year, all traces of her term papers and exams were destroyed and are therefore unavailable for review by the committee. And she has never issued a written opinion. Sen. Grassley, you have some questions for Judge Sloane? Sen. Grassley: Yes, thank you. Judge Sloane. Thank you for being here with us today. Judge Sloane: Thank you, Senator, for this honor. Sen. Grassley: Judge, I understand that you have never once in your career rendered a judicial opinion in writing, is that correct? Judge Sloane: That is correct, Mr. Senator. Sen. Grassley: Ah, excellent. I further understand that we have no written record of any views of yours on any legal subject — is that also correct? Judge Sloane: That is correct, Senator. Sen. Grassley: Well, Judge, the committee has gone ahead and subpoenaed several of your recent home phone messages, and a note to your child’s gym teacher from last March, and, having examined them thoroughly with my staff, I can say with some regret that they all bespeak a very liberal, activist tendency toward results-oriented decision making. If you are unwilling to apply the law of the land when it comes to your child’s physical education, how can you possibly use an originalist approach where it comes to state-sponsored school prayer? Judge Sloane: I cannot comment on any issue that might come before the court as a case or controversy without compromising my ability to be effective on the bench. Sen. Feinstein: Judge Sloane, perhaps you can’t comment on your phone messages, but can you — at the very least — share with us your views on the constitutionality of state workers suing the states under federal civil rights law, specifically in light of the Court’s recent 11th Amendment jurisprudence in cases such as Nevada v. Hibbs? Judge Sloane: It would not be proper for me to express a view on any case without doing the intensive work that a judge hearing that case would have to undertake. [FOOTNOTE 2] Sen. Specter: All right then, Judge Sloane, if you were a tree, what kind of tree would you be? Judge Sloane: It would not be proper for me to express a view on that issue without doing the intensive work that a judge planning on becoming a tree would have to undertake. Sen. Hatch: You can step down now, Judge. Judge Sloane: It would not be proper for me to either step down, or not step down, without doing the intensive work that a judge contemplating stepping down must undertake. Sen. Hatch: Security? Thank you. Just the restraints, sergeant. Thank you. Judge, we will keep you apprised of the status of your nomination. We shall now hear from our third judicial nominee, one who cannot possibly be found to have any flaws. Mr. Paul Porter, nominated to the 4th U.S. Circuit Court of Appeals, has no opinions on anything. He has actually lived in a Skinner box for the last 42 years and has received no external stimuli of any sort during that time. As a result, he cannot be said to have prejudged any issue, or indeed to have any idea of what an issue is. Can we please roll in the Skinner box? Sen. Kennedy: If the chair will permit, I have just this morning received a letter from the Skinner Box Legal Defense Fund — the principal, though by no means only, Skinnerian lobbying organization on the Hill — raising some deeply troubling objections to the Porter nomination. If I may be allowed to summarize the contents of this letter, the Skinner people feel that while Mr. Porter has indeed been born and raised in a Skinner Box, his maternal grandmother was not, in fact a genuine Skinnerian. She was, rather, raised in Lyme, Conn., in a small farmhouse. As a result, Mr. Porter cannot truly claim to be a bona fide Skinnerian, and cannot reliably be counted upon to represent the views and interests of the Skinnerian community. Sen. Hatch: Well, the chair thanks Sen. Kennedy for his illuminating, though disheartening, revelations. It would seem that Mr. Porter’s fitness to serve upon the bench is indeed compromised. The record will reflect that there is muffled shouting coming from inside the Skinner box as it is being rolled away from the Senate chamber. Sadly, we can never know what it is Mr. Porter might have been attempting to tell this committee. This leaves us with only one remaining candidate this afternoon for judicial confirmation to the U.S. Court of Appeals for the D.C. Circuit. The chair now recognizes an extremely able jurist, Connie the Coin. Connie is, as the committee can no doubt discern, a dime. Being an inanimate alloy disk, the nominee will be unlikely to develop views of any sort over time that could bias judicial decision making. Because of her impartiality, Connie has already received the highest rating from the American Bar Association. Moreover, the nominee has received ringing endorsements from the Treasury Department and both the National Association of Numismatic Fetishists and the Gumball Machine Assembly Workers Local 643. Connie, the committee is delighted to welcome you to Washington, and, if I may, I’ll just ask you this one question before we vote to confirm you: Do you believe that there is a right to bear arms enshrined in the U.S. Constitution? Let the record reflect that the coin came up heads. Finally, a strict constructionist after my own heart! Sen. Leahy: Finally, a judicial activist! Sen. Hatch: Committee? Hands, please? Let the record show the committee unanimously confirms Connie the Coin to the U.S. Court of Appeals for the D.C. Circuit. ::::FOOTNOTES:::: FN1 Cf. testimony of Clarence Thomas at Senate confirmation hearing in 1990. FN2 Cf. testimony of Miguel Estrada at Senate confirmation hearing in 2002. Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate. She is coauthor of a humor book, “Me v. Everybody,” forthcoming this spring from Workman Press. E-mail: [email protected].

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