Is That Legal?

If you ever get to thinking that you should run for office, the post above shows your lack of qualifications in stark relief.

Do a quick word count of Leahy's "question" ... now count all the words in your five ...

Rather than look for an actual answer in this back and forth you should probably take this chance to realize that our esteemed elected officials (on both sides of the aisle) could care less about the answers. The main point is that there are cameras all around, and they can chatter in a self-important manner.

I was just watching the hearings, and it strikes me that your scenario depends on getting direct answers to a much greater number of question than Roberts will probably answer all day. Model answer: "Senator, you just accurately quoted a previous opinion; I won't comment further on that."

Are you concerned b/c of Roberts' answer, or are you just regretting that Leahy bungled the question?

I don't see any equivocation in Roberts' answers, just an extreme effort to avoid saying "Your question is really stupid; you should have asked about Korematsu directly; let me answer the correct but unasked question.."

Note that the two go on to say:
"LEAHY: Let me ask you this: Do you feel that you would be able to interpret the Bill of Rights the same whether we're at wartime or not?

ROBERTS: I do, Senator."

and:

"ROBERTS: ....
because some factors may be different, the issues may be different, the demands may be different, but the Bill of Rights remains the same. And the obligation of the court to protect those basic liberties in times of peace and in times of war, in times of stress and in times of calm, that doesn't change."

IMHO, it sounds like Roberts is saying pretty clearly that he would take the Bill of Rights as not waivable during wartime.

The first commenter might have been a little harsh, but he/she was also poking at the wrong flaw in your post. I'd say your legal logic is even worse than your realism about politicians.
The things that were wrong with "separate but equal" are not the same things that are wrong with Korematsu or Hirabayashi. The former tried to defend factually unequal treatment by relying on the fiction that there was no unequality at all, all in the name of maintaining a "tradition" allegedly designed to maintain racial peace. Once the fiction of equality was destroyed, the Court wasted little time in blowing past the ridiculous policy justification for unequal treatment of the races.
The Korematsu and Hirabayashi problem does not involve any cute explanations about how the treatment is not unequal--it is unapologetically unequal. The question for the Korematsu Court, rather, was whether such blatantly unequal treatment could be justified on the basis of "national security" concerns at a time of war. Modern observers rightly condemn the Korematsu Court for deciding the government interests were sufficient to support the discriminatory internment--in large part by pointing out how flimsy those alleged security concerns really were. Does that mean no large-scale restriction on movement (e.g. a curfew or a blanket pre-flight strip-search for all Muslims) could ever be justified by a sufficiently dire security concern? Probably so, if only because there could (almost?) never be any truly credible security risk posed by every member of the targeted class. That, however, has nothing really to do with Plessy or with "separate but equal," and so your cross-examination attempt falls utterly flat.
I have every confidence that Judge Roberts would have told Leahy as much if Leahy had tried your approach.

MP, you missed the purpose of the invocation of Brown. It was not to suggest that Korematsu is like Brown or Plessy on the merits, which is what you seem to assume. It was instead to suggest that if Judge Roberts felt comfortable answering the question about Brown and its follow-up cases, then he would not really be able to decline to answer a follow-up question about Hirabayashi after having first answered the Korematsu question. The value of the segregation cases is simply to establish that Judge Roberts would be willing to answer "if this case was rightly/wrongly decided, then do you think that case was rightly/wrongly decided" sort of questions.

Fair point. I did indeed assume you were linking the merits of Plessy to the merits of Korematsu, and I was apparently mistaken.
I might observe, though, that even the more limited purpose for which you were using Plessy (to illustrate that if Plessy is wrong for education, Roberts ought to--and likely would--announce in the hearings that it would be wrong in other contexts) still doesn't translate very well to the Korematsu/Hirabayashi parallel. Unless I'm missing something about Plessy/Brown, the purported justification for segregation would not have been different depending on the underlying activity for which the races were being kept segregated, nor would the strength of the justification mattered that much (if at all). Presumably in Korematsu-like cases that involve lesser infringements on liberty than outright internment/incarceration, the balance between security needs and the costs placed on the targeted class would need to be reweighed. I have trouble imagining when the scale would tip enough in favor of the security interests to justify a blanket imposition on a specific national group, but it seems that the weighing nevertheless has to be done.

LEAHY: In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they'll speak with a somewhat different voice. He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race. Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history. Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will.
We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11. I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions. Can I assume that you will hold the internment of all residents of this country who are interned just because they have a particular nationality or ethnic or religious group -- you would hold that to be unconstitutional?

The first commenter might have been a little harsh, but he/she was also poking at the wrong flaw in your post. I'd say your legal logic is even worse than your realism about politicians.
The things that were wrong with "separate but equal" are not the same things that are wrong with Korematsu or Hirabayashi. The former tried to defend factually unequal treatment by relying on the fiction that there was no unequality at all, all in the name of maintaining a "tradition" allegedly designed to maintain racial peace. Once the fiction of equality was destroyed, the Court wasted little time in blowing past the ridiculous policy justification for unequal treatment of the races.

So that leads the money question: if Korematsu was wrong, then what about Hirabayashi--decided one year before Korematsu--which upheld a race-based curfew on Japanese Americans? Was that one also wrong?