The Real Reason to Watch the Gorsuch Hearings
Once upon a time, Senate confirmation hearings for Supreme Court justice nominees had a straightforward purpose: For Senators to learn the views of the nominees. Since Robert Bork was rejected by the Senate after giving his views, however, we get less and less of that. Here's HuffPollster's Jennifer Bendery summarizing the early questioning of Neil Gorsuch on Tuesday:
Yup. Recent nominees, whether chosen by Democrats or Republicans, come thoroughly prepared with empty cliches about how they have no pre-conceived views on, well, anything. For example, Judiciary Chair Chuck Grassley began the questioning by running through a series of famous court cases and soliciting the same answer about them from Gorsuch: That his personal opinion of the case isn't relevant, and that there are now precedents and should be respected, and otherwise it's inappropriate to comment whether they were correctly decided in the first place. Gorsuch did eventually admit to actually thinking that Marbury v. Madison (the foundational case of all Supreme Court jurisprudence) was not only precedent but also sort of a good idea). Then again, that one was decided in 1803.
That's pretty frustrating for anyone who wants to actually learn what these people will do if they wind up on the high bench with lifetime appointments.
It's especially frustrating because it's even more of a fraud now than it was back in the 1980s when Bork was nominated. These days, there are no surprises, and no iconoclasts. All four current Supreme Court justices nominated by Democrats vote consistently with positions held by the mainstream of that party, and all four justices nominated by Republicans support positions held by mainstream Republicans. 1
It's safe to say that Neil Gorsuch, if confirmed, will vote more or less the way that other recent Republican-nominated justices have voted. Yet for 10 hours or so on Tuesday, he was pretending (as Elena Kagan and Sonia Sotomayor did a few years ago) that he is a total blank slate.
Even worse? There's nothing to be done about any of this. Nominees (and the White Houses which prep them for these hearings) are following clear incentives established by the Senate, and senators aren't about to do anything to change it. That is, Republicans who otherwise support Gorsuch are not going to threaten to withhold their support unless he comes clean on his actual views. Nor would Democrats have similarly threatened Kagan and Sotomayor. To the contrary: Senators who support the nominee are happy to have those nominees keep their mouths shut.
This makes for quite a few frustrated senators, not to mention frustrated reporters with little to write about. And it's made several observers wonder -- with good reason -- whether there's any point to holding public hearings. It turns out those hearings are relatively modern inventions, anyway. If they don't inform senators, what's the point?
Of course, there's no chance the Judiciary Committee will give up their opportunity for quite a bit of publicity -- even if they aren't learning anything.
Fortunately, there is one saving grace which makes these hearings worthwhile. Nominees may not discuss their political and judicial philosophies, but senators certainly do. Indeed, whether Senators learn anything or not, attentive viewers can learn quite a bit about the Supreme Court by watching the hearings.
That's particularly true for the opposition. Some senators from the president's party do make a case for conservative (or liberal) jurisprudence, but most tend to ask softballs that play into the fiction that justices bring no prior opinions to the job. The out-party, on the other hand, tends to argue that each nominee is outside of the mainstream -- which they do by highlighting policies or philosophies on which the nominee has taken (supposedly) extreme positions. Since Judiciary Committee senators are usually well-prepared for their big moment, they wind up doing a fairly good job of emphasizing how much the courts matter to all citizens, and the ideas that separate liberal and conservative judges.
So on Tuesday attentive viewers would be reminded of the issues that are at stake, from abortion rights to torture to religious practices and much more. And learn about obscure but very important doctrines at stake, such as "Chevron deference," which has to do with how willing the courts are to overturn decisions by executive branch agencies.
No, most citizens aren't watching even gavel-to-gavel cable network coverage of these hearings. But it's an opportunity otherwise not available for ordinary citizens. And many political actors -- including the media -- are paying attention, and wind up getting much more of an education than they would otherwise. That's good!
So, yeah, you probably didn't learn much about Neil Gorsuch by watching the hearing. If you want to know how he'll vote, by far the most helpful thing to know is just that he was nominated by Donald Trump from a list supplied by movement conservatives. But it's still a worthwhile exercise, anyway.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Sure, there are exceptions on occasional issues where one of the Supremes will cross over to the other side; even more rare cases which produce a truly different structure on votes; and, yes, plenty of cases which produce unanimous opinions. And, yes, subtle differences within the liberal and conservative blocs can be very important, too.
To contact the author of this story:
Jonathan Bernstein at firstname.lastname@example.org
To contact the editor responsible for this story:
Mike Nizza at email@example.com