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Gene Weingarten: A staid confirmation, and then watch out!

WASHINGTON — I've always known I couldn't get a high government position, because I'd never survive the confirmation hearings.

Senator: Mr. Weingarten, when you were in college, did you take hallucinogenic drugs?

Me: Yes, but no more than your average funkadelic reggae band, and only during heroin droughts.

Senator: The witness is excused.

It also would not go well for me if they probed too deeply into my politics, which are extremely liberal.

Senator: Please state your positions on abortion, flag-burning, gun control and the role of religion in a pluralistic society.

Me: (I explain my views in detail and with complete candor.)

Senator: Please prepare the witness for lethal injection.

So I've always figured that high appointive position was out, but I've changed my mind. I now think I might have a shot at the U.S. Supreme Court. I concluded that after watching the confirmation hearings for Elena Kagan, where it became clear that a Supreme Court candidate is not only allowed to be evasive, but is encouraged to be evasive. Because it is tactically unwise to reveal any position with which anyone might disagree, weaseling is admired as lawyerly skill.

Senator: Mr. Weingarten, when you were in college, did you consume hallucinogenic drugs?

Me: I think we both know it would be improper for me to address that question, Senator.

Senator: I apologize. I feel so, so . . . dirty.

Me: For the sake of transparency, however, I should note that in United States vs. E.I. du Pont de Nemours & Co., 351 U.S. 377 (1956), antitrust laws were held not to apply to the sale of cellophane because of the availability of other, comparably utilized flexible packaging materials.

Senator: Wow! No further questions!

This extremely collegial and polite and nonrigorous questioning procedure has resulted in the appointment of several justices about whom remarkably little was known. David Souter, for example, was on the bench for several years before it became clear he was a tree-dwelling marsupial.

The irony, of course, is that once you have survived the confirmation process and are seated on the court, you can do whatever you want. In my decisions, I would happily cite as legal precedent the collected wisdom of Yogi Berra. I'd feel silly in robes, but out of deference to precedent and to the dignity of the court, I would wear them. However, I would accessorize — sometimes, with a graduation-cap mortarboard, or a Roman laurel wreath, or an enormous prom corsage.

The best part of my Supreme Court service, though, is that no matter what I did, no matter how bizarrely I behaved, I would get the benefit of the doubt. The justices always do, because they are presumed to be wise and learned. Clarence Thomas has become famous for never, ever, uttering a single word during oral arguments; this tends to be interpreted as some sort of magisterial restraint, as though he were the Oracle at Delphi rather than the unprepared kid in the fourth row who is trying to stay invisible because he doesn't want to be called on to enumerate the Principal Causes of the Civil War. ("Um, tooth decay? Nazis? The potato famine?")

Like the pope, Supreme Court justices are appointed for life, which means they cannot be forced out, regardless of their physical condition. It is a little-known fact that for much of the year 2005, both Chief Justice William H. Rehnquist and Pope John Paul II served with distinction while dead.

But, ultimately, the best thing about being a justice is "dissenting opinions." Even if you are completely alone, you can say whatever you want, and it becomes part of the History of American Jurisprudence. I'll be famous for: "The equal protection clause applies to everyone except people who talk on cell phones while paying at a cash register."

Gene Weingarten can be reached at Chat with him online at noon Tuesday at

Gene Weingarten: A staid confirmation, and then watch out! 07/24/10 [Last modified: Friday, July 23, 2010 5:44pm]
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