Supreme Court confirmation hearings increasingly look like trysts between horny customers posing as suitors and a pre-paid prostitute. We ought to dispense with these hearings, or, at the very least, be honest about the process.
So it is no surprise to learn next to nothing about President Trump’s nominee to fill the vacancy left by the death of Antonin Scalia. Neil Gorsuch sat for some ten hours of questioning yesterday. It was an act of profound intellectus interruptus.
There’s no doubting Gorsuch can do the job. Indeed, the Constitution imposes no formal requirements on candidates. One needn’t even be a lawyer to win a seat on the Supremes. (Although no non-lawyer has ever been seated: only two, James F. Byrnes (1941-1942), and, Robert H. Jackson (1941-1954), came to the court with non-traditional legal educations.)
The American Bar Association, which informally vets candidates, rates Gorsuch as up to the task. It’s hard to quibble with that assessment. Like virtually all of immediate predecessors, he’s a product of one of the nation’s top law schools, having graduated from the Harvard Law School. He even holds an additional law degree, a doctorate in legal philosophy from Oxford University. He is a graceful writer and a supple thinker.
He’s not, judging by his performance at the hearings this week, much of an orator, however. He sounded at once grating, even whiny, in response to questioning. I suppose it’s no wonder he earns his keep as an appellate judge. He has the jury appeal of limp noodle.
That may be unfair. It may be that the eight weeks he spent preparing for the hearing killed the spirit within him. His answers yesterday were all safe and predictable. If we learned anything about Gorsuch yesterday it is that he knows how to stick to his script.
Yes, the judge respects the Court’s precedent: the doctrine of stare decisis is secure, God save the Republic. No, he won’t forecast on how he might decide an issue that comes before him. No one is above the law. He will decide each case on the merits – the facts and law as he sees them. He is beholden to no one.
We didn’t need confirmation hearings for this meaningless drivel.
The confirmation process is easy enough to understand. The president nominates a candidate to fill a vacancy to the nation’s highest court. The Senate, with its constitutional obligation to advise and consent, then must choose to confirm or not. The Senate’s Judiciary Committee holds hearings to discharge this function, hearings at which committee members get to question the nominee; the nominee then responds. The responses rarely rise to the level of meaningful answers.
If the Judiciary Committee votes to confirm, then full Senate then casts its vote. It takes a bare majority, 51 of the 100 members of the Senate to confirm. If determined Senators want to block a vote, they can filibuster, that is, endlessly debate, a candidate’s merits. It takes 60 votes to end a filibuster, thus the so-called “supermajority” cloture requirement. The Senate can suspend this cloture rule to bring a matter to a vote without cloture.
A nominee’s job, then, is to survive the gauntlet.
What was on display at the Gorsuch hearings were the political divisions that immobilize us. Democrats threaten to block the nomination in retaliation for last year’s failure even to schedule for a vote the nomination of Merrick Garland, another well-qualified and oh-so distinguished titan of the Ivy League bar: Connecticut’s Senator Richard Blumenthal is becoming unhinged, bleating about Gorsuch as outside the “legal mainstream,” as though Blumenthal himself had ever walked anything but the safest middle course.
The Republicans, in the meantime, tossed softballs to Gorsuch – we heard about fishing, quirky books and other trivia. I expected more from Ted Cruz, who pitched some of these balls; I half suspect, Cruz himself eyes a seat on the Court.
Here’s the simple truth. Judges decide cases based on the legal doctrines at their disposal and the facts as presented to them. These questions of law and fact are not decided in a mathematician’s vacuum. Judges are often required to weigh the competing values embedded within legal doctrines, choosing to stress one value at the expense of another. A judge pretending to be a mere technician, as all nominees appear to do at these senseless hearings, is being dishonest.
Hence the analogy to prostitution.
Almost any nominee will be qualified to do the job. The law is difficult, but not impossibly so. Any person of good will and normal intelligence can understand it; with hard work, its rhythms can be mastered.
A nominee, then, knows that the satisfaction of his or her ambition is within reach. All he has to do is say the right things to the gemmed mistresses sitting in the Senate. What can do to get to yes, becomes the standard. We learn nothing about the candidates, and everything about the passions of the Senators.
Confirm Gorsuch or not. But spare us more senseless hearings. I’m not interested in the magic words one must utter to get the painted ladies in the Senate to give up their charms. We know those fools are for sale, each and everyone of them.