The CYA of “Precedent”

To her credit, Linda Greenhouse does nothing to conceal her bias, her one-time effort to feign neutrality, occasionally failed, long since shed. While she stlll gets to mount the New York Times soapbox to take advantage of her attributed credibility while infusing her op-eds with her personal venom, at least she’s willing to let them know up top that she’s a team player.

The Senate Judiciary Committee’s confirmation hearing for Judge Neil M. Gorsuch was just plain embarrassing, and not only for the nominee. But let’s begin with him, skipping over his Republican enablers, who had nothing to do but lob softball questions and praise his answers. If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone.

It was, indeed, predictable, though not necessarily for the reasons Greenhouse says. Every modern Supreme Court nominee gets kisses blown from his party and loaded “gotcha” questions from the opposition. This hyperbole tries to paint this as wrong or unusual. Greenhouse knows better, having covered these hearings for years. But her readers don’t, and she relies on their ignorance, combined with her soapbox cred, to deceive and inflame them.

But at least she’s flagrant about it. If a reader chooses not to be made stupider, they won’t be misled. And if a reader desires to be fed lies to validate their hate, well, then her bias doesn’t matter. They don’t need reality to taint their worldview. 

Yet, surrounded by much of her nonsensical prose is a actual good point.

In any event, all Judge Gorsuch had to say about the right to abortion — as well as about the 51-year-old constitutional right to use birth control — was that it was supported by precedent. In answer to a question from Senator Chuck Grassley of Iowa, the committee’s chairman, about what he had to say about Roe v. Wade, the nominee answered: “I would tell you that Roe v. Wade, decided in 1973, was a precedent of the United States Supreme Court.”

Elaborating ever so slightly, he went on to observe that the decision had been reaffirmed and that people relied on it. “So a good judge will consider it as precedent of the United States Supreme Court, worthy of treatment as precedent like any other.” Precedents, of course, receive all kinds of “treatment” at the hands of future courts, from a warm embrace to being whittled away to outright overruling. What kind of “treatment” Judge Gorsuch thinks the court’s abortion precedents deserve was left neatly unspecified.

Throughout the hearing, Judge Gorsuch used the word “precedent” in response to questions (I’m being overly kind here) about what he thought of monumental Supreme Court cases, from Roe v. Wade to Gideon. He responded with, “they’re precedent.”

Judge Gorsuch had so thoroughly absorbed his handlers’ instruction to answer every question about a precedent by acknowledging that it was, indeed, a precedent that he actually slipped up in answering a question about Bush v. Gore, the case that decided the 2000 presidential election. “As a judge, it is a precedent of the United States Supreme Court, and it deserves the same respect as other precedents of the United States Supreme Court when you come to it as a judge. And it is to be analyzed under the law of precedent.”

While the use of the word “handlers” might suggest, and is likely intended to suggest, that this was a dog and pony show in which Gorsuch’s responses were scripted by manipulative malevolent schemers, it’s likely true and there’s nothing unusual or surprising about it.

Was Gorsuch’s response of “precedent” a message that he is a slave to precedent, such that he won’t be able to bring himself to perform the function of a Supreme Court associate justice of reversing precedent? Any idiot can rubber stamp precedent, but the Nine who comprise a branch of government must be bold enough to reject Plessy v. Ferguson. Was that his message, that he lacks the guts to do the hard job?

This appointment, coming on the heels of the outrageous refusal of the Republican-controlled Senate to give Merrick Garland a hearing, and being appointed by the president so utterly despised that if he nominated Thurgood Marshall, they would shriek that he was scum, was destined to be so highly politicized and divisive that there was no response to be given that wouldn’t be used to prove he would destroy the union.

In other words, there was nothing Judge Gorsuch could say that would appease the townspeople with the pitchforks and torches other than Roe v. Wade was the bestest decision ever and he would go to war to protect a woman’s right to choose. And indeed, that was what ham-handed efforts by inept questioners sought of him, “tell us how much you hate Trump and think he’s a lying, cheating moron, Judge? It’s a yes or no answer. Do it!!!”

There was no realistic way this was going to happen, that the nominee would disavow the president who nominated him or concede to progressive senators that he was totally on their team and would rule as they demanded of him. And so, he deflected question after question with the word “precedent.” That’s what comes of such a highly politicized attack, deflection to walk out of the hearings without having committed any gaffes upon which the opposition could hang their hat.

But Greenhouse is right that “precedent” is both unsatisfying and insufficient. While it’s true that a Supreme Court nominee shouldn’t express prejudice toward issues that may come before him on the bench, it is not accurate to believe that he can’t express any views, particularly about the efficacy of decisions made by the Court. The implicit caveat that every case brings its own set of facts, of circumstances, to which law is applied serves as an escape hatch.

More to the point, his philosophy toward how a justice should approach a case matters, and is fair game for questioning. The takeaway, if one was to be so naive as to believe that precedent answers all questions, is that Judge Gorsuch will be an empty seat on the Supreme Court, rubber stamping prior opinions and refusing to perform the hard job of reversing those that need reversing. That’s not likely the case, but then, that’s all we can divine from his taking the judicial Fifth by reiterating precedent.

Were the hearings “plain embarrassing”? Perhaps, but equally embarrassing for all sides. The opposition senators beclowned themselves with disingenuous questions whose only purpose was to try to trap Judge Gorsuch into an answer they could use to whip up their fans into a frenzy and create a plausible reason to deny him confirmation. And that the judge was reduced to responding to the dog and pony show with deflection rather than insight.

The question for America is whether we prefer to have Supreme Court confirmation hearings reduced to such dog and pony shows, such that we really have no insight into who is being put on the Court, or swallow our political hatred and give every nominee a fair hearing. If the only purpose of confirmation hearings is to pray for a good reason to destroy a nominee, then what does anyone expect?

Sure, the treatment of Judge Garland hurts and was outrageously wrong, but Trump is the president and he could have done far, far worse than Neil Gorsuch when selecting his nominee. No matter what, it would never have been a judge who would please Greenhouse.

8 thoughts on “The CYA of “Precedent”

  1. B. McLeod

    That she is still able to mount a soapbox is simple testimony to soapboxes’ inability to defend themselves.

  2. Roger

    Would it have asked too much to try to get an answer to the question of, in general and without commenting on any specific precedent, how much deference an originalist judge owes to a living constitution precedent, and the framework he would use for deciding when such precedents need not be followed? Never mind. Stupid question. Of course it would.

    1. SHG Post author

      And boom, the competition is on for which side can be the stupidest asshole possible. The worst part is that you won’t have the capacity to grasp what’s wrong with your “question” or you wouldn’t have asked it.

  3. Billy Bob

    You’re beating a dead horse. You will never be invited to the Times’ X-Mas party. People who live in green houses should not throw stones. Or did we get it backwards? Does she ever get on the horn and try to work this out with you? After all, you’re both New Yorkers. You and the wife could take her to dinner at that new French restaurant you discovered! Dr. SJ could “mediate” the discussion.

    Fianlly, Gorsuch is such a bore. He is no Nino Scalia! Not to worry: The Orange Man should have a couple of more opportunities to pack the court.

      1. John Barleycorn

        At least she reads..and come on, esteemed one, I know you can be a bit sensitive, but nieve? Everyone knows that whole, “spell my husband’s name right” deal and slut shaming the “blawg-o-sphere” thing is really just a cover for her carnal lust to get as close as she dare to the “truth”.

        She ain’t stupid, and even with a few pints in her I bet she doesn’t even bother whipping out her crystal ball around company where the  “Greenhouse Effect” holds no power.
        In fact, I bet if you brought the jam Linda would take you up on getting together for some tea and crumpets, even if you are still on that newspaper you read everyday’s black list.

        Who knows, perhaps an older woman could teach you a thing over some earl gray when it comes to getting others to coin judicial temperament pancake flips and flops after ones self.

        She isn’t getting any younger you know and let’s face it, it’s all about the green.

        Isn’t it about time the ” Green_________ effect” left the HOUSE and took to the FIELD?

        P.S. I bet she delicately spreads jam like a goddess between 11:00 a.m. and happy hour and let’s face it she’s got a funky “sexy” laugh.

        What the hell are you waiting for? She might be a biter but I seriously doubt it.

        BTW, did the Hotel Chelsea ever finish their remodel, if so and they kept the iron balconies, I would just book a room and tell her you will bring your laptop if she brings hers….

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