[01/11/2006 NOTE by Bathus: There's an update of this item here at the end of this post.]

Let's have some fun with statistics, shall we?

In the senate judiciary committee hearings this morning, Ted Kennedy clumsily attempted to make use of a Cass Sunstein "study" to support a charge that "Judge Alito rules against individuals 84 percent of the time." Writing for National Review Online two days ago, Byron York pointed out in advance that, with all its caveats, qualifications, and disclaimers, Sunstein's report is useful "to prove virtually nothing." Well, it does prove that if a bloated liberal senator gives Cass Sunstein enough money, in a very short time that scholar of unimpeachable credentials will produce a study of sufficient rigor to convince the bloated senator that what the bloated senator wants to be believe is actually true.

Kennedy didn't mention Sunstein's ample disclaimers because the ample senator doesn't care whether Sunstein's ginned up stats reveal everything, something, or nothing about what kind of justice Alito would be. Kennedy's not alone in that regard. If any of the senators on the judiciary committee actually cared about using these hearings to learn something about Alito, they would spend more time listening to what the nominee might have to say, and less time self-indulgently bloviating.

Kennedy's use of Sunstein's dubious statistics inspired me to do a little number-crunching myself, to answer the pressing question: Which senator, when measured by an objective standard, can be identified as the biggest gasbag on the judiciary committee?

My methodology is completely objective:

Using this transcript of the morning session of today's hearings, for each senator's thirty minute question period I took the number of words spoken by the senator and divided it by the number of words spoken by the nominee and the senator together. Actually, because some senators use bigger words and some use smaller words, I decided that, instead of using words as the unit of measure, it would be better to use individual letters (without counting spaces between words), so that the phrase "Alito sucked eggs" and the phrase "Alito dissembled" count exactly the same: 15 characters. (Before calculating percentages, I excluded words spent on administrative matters and other similar interruptions. However, the senators'--often extensive--introductory remarks were counted.) So the numbers in the second and third columns of the chart below reflect the number of letters (not words) appearing in the transcript of questions and answers asked by and answered to each senator. The resulting percentages, shown in the last column (labelled "Senator %,") indicate what portion of each senator's dialogue with Alito was comprised of the senator's "questions."



The great thing about careful statistical analysis is that it reveals truths that just can't be discerned by casual observation and common sense alone.

For example, I bet you never would have guessed that the biggest gasbag during the first session of questioning was Joe Biden, who monopolized almost 80% of his dialogue with Alito. Roughly speaking, the nominee got in edgewise one word for every four that meandered out of Biden's yap.

Coming in a distant second in verbosity this morning was the ever-generous Ted Kennedy, who gave more than twice as much as he received. But it's not really fair to expect the bloated one to be up to snuff so early in the day.

As a group, during the morning session the senators used up three-fifths (60.32%) of the total dialogue and left the nominee to make do with two-fifths. I guess that's only fair since there are so many of them and only one of him.

Kyl was the only senator who failed to out-talk the nominee. But as the last questioner of the morning session, Kyl was interrupted when the committee adjourned for lunch ten minutes into his allotted thirty minutes. With a light lunch and a heavy nap, perhaps Kyl can catch back up with pack when the hearings resume in the afternoon.

Joe Biden also claimed the morning's prize for the longest soliloquy, wherein he wasted more than a third of his entire dialogue with Alito on this single "question":

BIDEN: Well, it was a pretty outrageous group. I mean, I believe you that you were unaware of it. But here I was, University of Delaware graduate, a sitting United States senator, I was aware of it because I was up there on the campus. I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well.

And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus.

But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton...

I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had.

I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen.

But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time.

The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here.

The first one is individual qualifications and what their constitutional methodology, their views are, their philosophy.

But the other is -- and it always occurs -- whose spot they're taking and what impact that would have on the court.

Everybody wrote with Roberts after the fact that a lot of people voted for Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist. So Roberts for Rehnquist, you know, what's the worst that can happen, quote/unquote, or the best that can happen?

No, I'm not being facetious. What's the best or worst?

If you're conservative, the best that can happen is he's as good as Rehnquist. From the standpoint of a -- someone who's a liberal, the worst that can happen, he's as good as Rehnquist.

So, I mean -- but you're replacing -- I mean, we can't lose this and so people understand this. You are replacing someone who has been the fulcrum on an otherwise evenly divided court. And a woman who's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've used -- a real-world perspective. This was a former legislator, this was a former practitioner, this was someone who came to the bench and applied -- to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that -- what would happen to an individual.

So her focus on the impact on individuals was sometimes criticized and praised.

It's just important you understand, at least for my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance 5-4, 4-5, one way or another.

And that's the context in which, at least, I want to ask you my questions after trying to get some clarification, or getting some clarification from you on concern Princeton. Because, again, a lot of this just is puzzling; not not able to be answered, just puzzling.

Judge, you and I both know -- and clearly one of the hallmarks, at least in my view, of Justice O'Connor's position was, she fully understood the real world of discrimination. I mean, she felt it.

Graduated number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary.

And so she understood what I think everybody here from both ends of the spectrum understand: that discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago.

And employees don't say any more, you know, "We don't like blacks in this company," or, "We don't want women here."

They say things like, "Well, they wouldn't fit in," or, "You know, they tend to be too emotional" or "a little high-strung."

I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. We wrote these laws to try to get at what we observed in the real world.

What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.

And so I'd like to talk to you about a couple of anti- discrimination cases. One is the Bray case. In that case, a black woman said she was denied a promotion for a job that she was clearly qualified for. There was no doubt she was qualified. And she said, "I was denied that job because I'm a black woman."

And it was, as I said, indisputable she was qualified. It was indisputable that the corporation failed to follow their usual internal hiring procedures. And the corporation gave conflicting explanations as to why they reached the decision to hire another woman who they asserted was more qualified than Ms. Bray.

Now the district court judge said, you know, Ms. Bray hadn't even made a prima facie case here, or she made -- but she hadn't made a sufficient showing to get to a jury; I'm finding for the corporation here.

And Ms. Bray's attorney appealed and it went up to the 3rd Circuit. And you and your colleagues disagreed. Two of your colleagues said, you know, Ms. Bray should have a jury trial here. And you said "No, I don't think she should," and you set out a standard, as best I can understand it. I want to talk to you about it.

And your colleagues said that if they applied your standard in Title VII cases, discrimination cases, that it would effectively -- their words -- eviscerate Title VII because, they went on to say, it ignores the realities of racial animus.

They went on to say that racial animus runs so deep in some people that they're incapable of acknowledging that a black woman is qualified for a job.

But, Judge, you dismissed that assertion. You said that the conflicting statements that the employer made were just loose language, and you expressed your concern about allowing disgruntled employees to impose cost of a trial on employers. And so your colleagues thought you set the bar, I think it's fair to say, pretty high in order to make the case that it should go to a jury.

Can you tell me what the difference is between a business judgment as to who's most qualified -- you said, "This comes down to subjective business judgment" -- and discrimination? You said, "Subjective business judgment should prevail unless the qualifications of the candidate are extremely disproportionate."

What's the difference between that in today's world and discrimination? I know you want to eliminate discrimination. Explain to me how that test is distinguishable from just plain old discrimination.

So the big revelation from this morning's hearing is that, based on objective statistical analysis and confirmed by anecdotal evidence, Joe Biden is the biggest gasbag on the judiciary committee.

Even though he is an indeflatible gasbag, from what I've heard Joe Biden is actually a pretty decent guy on a personal level, which is more than one can say--on any level--about certain other members of the committee: If I can figure out an objective way to measure who's the biggest asshole on the judiciary committee, my next post will feature Ted Kennedy.

UPDATE 01/11/2006: The table above displayed data only for the first seven senators who questioned Alito during yesterday's morning session. By this afternoon the judiciary committee had completed its first full round of questioning, so I've run the numbers to show results for all eighteen senators:




With one full round of questions completed, Joe Biden retained his top spot in the gasbag stakes, but saw his lead threatened by Republican John Cornyn who now trails him by less than one percent. By the end of the first round, Ted Kennedy had slipped all the way to fifth place, when Senators Schumer and DeWine both recorded truly inspired displays of fatuous bloviation. Undeterred, the bloated senator from Massachusetts remains within what for him is easy stinking distance of the lead, and has promised an especially gaseous outing in the second round of questions, which was set to begin right after lunch today. Thrown off stride when his first round questions were interrupted by an adjourment after only ten minutes, Senator Kyl had been the only inquisitor to fail to out-talk the nominee in yesterday's morning session. But after the adjournment Kyl came back strong in his final twenty minutes to offer a respectably gas-filled performance that propelled him back toward the middle of the pack. Bringing up the rear were Senators Feinstein and Kohl. Those two senators, who permitted the nominee to out-gas them badly, have fallen so far behind that some have suggested they should drop out of the competition altogether.

(Thanks to James Taranto at Best of the Web for linking this post.)