Tonight, senior Illinois Sen. Dick "Mad Regime" Durbin brought up the Lemon Test, leading to a great quote from Judge Roberts regarding this legal "survivor" (which he suggested would have been overruled by now if the justices had been able to agree on an alternative).

"The good thing about the Lemon Test," Judge Roberts said, "is that it is very sensitive to factual nuances, and the bad thing about it...is that it is very sensitive to factual nuances." This has led, Roberts continued, to a situation with Ten Commandments cases this past term where "exactly one justice believes both cases were correctly decided."

Sad. True.

I also appreciated a moment in Sen. John Cornyn's "questioning" (a.k.a. the half-hour "phone-a-friend"), wherein he asked Roberts which of the following umpires he most resembled:

First umpire: "Some are balls and some are strikes, and I call them as they are."
Second umpire: "Some are balls and some are strikes, and I call them as I see 'em."
Third umpire: "Some are balls and some are strikes, but they ain't nothin' 'til I call 'em."

The question came from a Volokh Conspiracy blog post Sen. Cornyn read last night...a nice little factoid that raises the prestige of the blogosphere just that much more. Not surprisingly, Roberts chose the middle option and eschewed the two examples of judicial hubris on either side. But his reasoning for doing so was refreshing. Paraphrasing Roberts here, the judge said that he believed that regardless of whether he called strike or ball, there was a correct answer and an incorrect one. "I believe that there is a right answer," he said, "and that when Congress passes a law it means something in particular." He then took to task those who argue that "there are no right answers," saying that he does not subscribe to their legal thinking.

A Chief Justice who believes in objective truth? It wouldn't be the first time, of course, but considering who we almost had to deal with as president, I'm relieved to hear Roberts has a working intellect.

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