After the clock struck midnight on the East Coast last night, toward the final hours of the marathon U.S. Senate impeachment trial session that featured both the U.S. House manager prosecution and the presidential defense team dueling about the trial’s procedural rules, Chief Justice John Roberts was peeved. The nation’s highest jurist, constitutionally required to preside over a Senate impeachment trial of a president, excoriated both sides for the rambunctiousness and juvenility of their respective rhetoric.
“A marathon, 12-hour first day in the Senate impeachment trial against President Trump erupted into a shouting match well after midnight Wednesday morning, as Trump’s legal team unloaded on Democratic impeachment manager Rep. Jerry Nadler, D-(NY) — in an exchange that prompted a bleary-eyed Chief Justice John Roberts to sternly admonish both sides for misconduct in the chamber,” Fox News reported.
“Nadler, who was overheard apparently planning to impeach Trump back in 2018, said it would be a ‘treacherous vote’ and a ‘cover-up’ for Republicans to reject the [former National Security Advisor John] Bolton subpoena amendment, claiming that ‘only guilty people try to hide evidence,'” the outlet continued. “Bolton has reportedly described Trump’s conduct as akin to a ‘drug deal,’ and he has indicated he would be willing to testify and provide relevant information.”
President Trump’s two main defense lawyers, White House Counsel Pat Cipollone and Jay Sekulow, both fired back against Nadler. “Mr. Nadler came up here and made false allegations against our team,” Cipollone said. “He made false allegations against all of you [senators]; he accused you of a cover-up. He’s been making false allegations against the president. The only one who should be embarrassed, Mr. Nadler is you, for the way you’ve addressed the United States Senate. This is the United States Senate. You’re not in charge here. … It’s about time we bring this power trip in for a landing.”
This exchange proved too much for the chief justice.
“It is appropriate at this point for me to admonish both the House managers and the president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts sternly rebuked. “One reason it has earned that title is because its members avoid speaking in a manner, and using language, that is not conducive to civil discourse.”
“In the 1905 [Judge Charles] Swayne [impeachment] trial, a senator objected when one of the managers used the word ‘pettifogging’ — and the presiding officer said the word ought not to have been used,” the chief justice continued. “I don’t think we need to aspire to that high a standard, but I do think those addressing the Senate should remember where they are.”
That the chief justice saw fit to reprimand both sides did not sit well with every Republican senator in the “world’s greatest deliberative body.” Sen. Mike Lee (R-UT), himself a lawyer and former U.S. Supreme Court law clerk for Justice Samuel Alito, told Fox News earlier today that he thought it was “unfair” for Roberts to include Trump’s defense lawyers alongside the Democratic prosecution as part of his critical remarks.
Chief Justice Roberts, a George W. Bush high court nominee who is widely reputed to care tremendously about preserving the purported non-politicization of Alexander Hamilton’s “least dangerous” branch, famously analogized the role of a Supreme Court justice to that of a baseball home plate umpire calling balls and strikes during his Senate Judiciary Committee confirmation hearing. Politico recently observed how his role overseeing the nation’s first presidential impeachment trial in two-plus decades could afford him a unique opportunity to bring that analogy to fruition:
[I]n his 14 years as chief justice, Roberts hasn’t really had the role of umpire — and he knows it. That said, Roberts’s comment about balls and strikes probably reflected an aspiration. To the extent that the Court can be perceived (rightly or wrongly) as acting with principled neutrality, its reputation as an arbiter floating above the political scrum is strengthened. And for judges who like to be perceived as doing nothing more than faithfully applying the law, the umpire analogy is always tempting. There’s something appealing about just getting to call balls and strikes.
Now for the first time, the impeachment trial is giving Roberts that chance. For once, Roberts will have a decision-making role in a forum where he himself is not a major player in the drama. The big players are people like McConnell and Schumer, Romney and Murkowski, Nadler and Schiff, Starr and Dershowitz, the witnesses (if any) who testify—and, offstage, the president. Roberts is there, at the center, and he needs to make decisions. But this time, he really is just the umpire. He’s not the one we’re tuning in to see, and the game’s most important decisions and actions belong to other people. And the rulings he makes, for once, can be made under an umpire’s decision-making conditions: All by himself, yes or no, and maybe in real time.
Roberts, the infamous deciding vote in favor of constitutionally upholding Obamacare’s individual mandate back in 2012, has long drawn the ire of many conservative critics. Last summer, I opined in a Daily Wire op-ed about the lessons conservatives should learn from his oftentimes lackluster career on the nation’s highest court:
The lessons to learn from Roberts’ tremendously disappointing career on the Court are the same lessons that conservatives ought to learn from [Justice Brett] Kavanaugh’s similarly disappointing start. I have identified three broad criteria for which we ought to carefully vet the next Supreme Court nominee: (1) full-spectrum conservatism, (2) stiff resistance to the “Greenhouse Effect,” and (3) eagerness to aggressively correct course. And for the love of God, also make sure the nominee is also someone with a lengthy paper trail and who will not be tempted by non-legal concerns — such as Roberts’ obvious and indefensible preoccupation with the Court’s “institutional integrity.”