There are a few things that should be understood in advance. First, Neil Gorsuch will be confirmed as the next associate justice of the Supreme Court, as he should. Second, Neil Gorsuch would not be my choice for associate justice of the Supreme Court if I was president, but then again, I’m not. Third, the confirmation hearing in the Senate Judiciary Committee is a dog and pony show put on to play to an audience.
Fourth, if it was not a dog and pony show, it might serve some public utility by asking serious questions, getting serious answers and conveying a better understanding of how our tripartite government works. Unfortunately, this is unsatisfying to the various senators’ constituencies, and it would be an enormous risk to be deliberative. The game of gotcha plays far better to an audience of angry groundlings.
SNL-alum-cum-senator Al Franken had a great line: “I had a career in identifying the absurd.” He was trying, desperately, to get Judge Gorsuch to admit that his dissent in the frozen trucker case was absurd. Not because of the law, as Franken is no lawyer and, despite his remarkably comedic timing, has no interest in nuanced legal analysis, but because he knows the outcome felt wrong and, yes, absurd.
Franken pushed Gorsuch as to what would he have done if he was the frozen trucker. Gorsuch deflected, as he wasn’t the frozen trucker but a judge deciding whether a specific law, as written, provided a remedy for what everyone conceded was a bad situation. Franken was having none of it. Franken’s supporters would have none of it either. Lawyers, watching Franken try to harangue Gorsuch into submission, cringed.
Had the question been asked of me, I would have replied that the law doesn’t change because you feel sad tears that the outcome doesn’t match your feelz. I would have shot back, as Gorsuch did in response to numerous other questions from other senators, that if Congress wanted a different outcome, it should get off its lazy, pathetic, bullshit ass and enact laws that say so. And if Congress doesn’t, then don’t blame judges for doing their job because Congress fails to do its job.
Then again, had I been on the Transam case, I would not have ruled as Judge Gorsuch did. I would not have dissented. His statutory interpretation was literal, but myopic. But Franken’s attack at the outcome wasn’t about disagreeing with Gorsuch’s methodology of textual interpretation, but that he wasn’t an empathetic Latina guided by his uncontrollable emotions.
Is Franken that clueless about the law, the role of judges? Nah. He’s a smart guy. He knows how to put on a dog and pony show to make his fans screech with joy as he tears down the evil administration and all its penumbras and emanations. And Franken, as well as the rest of the Democratic senators, know Gorsuch will be confirmed, so the only purpose of the hearing is to show their team that they won’t go down without a fight, and it’s the fight their fans want to see.
Like pro wrestling, they’re putting on a show to please their audience.
How Judge Gorsuch kept his cool as senator after senator asked idiotic question after idiotic question is a testament to his judicial temperament. I was hoping he would mutter, “Al, you ignorant slut,” under his breath, but it never happened. As senators speechified for their fans, and Gorsuch sucked it up and pretended not to be annoyed at the 97th time the same stupid question was asked, it occurred to me why it might be hard to put a trench lawyer on the Supreme Court.
Had this been Merrick Garland, because the senate wasn’t filled with hypocritical politicians who have that shameless gene that allows them to pretend they aren’t totally full of shit when they look at the TV cameras with serious faces and tell the most outrageous lies possible, the teams would have changed but the stupid questions would have been the same.
All of which raises a question, considering this is about confirmation of one of nine people who constitute a branch of our tripartite government. Why do we not want to be sure that one ninth of a branch of government is the right person for the job?
Will Baude notes that it’s not law, but norm, that constrains a nominee for the seat to refrain from offering insight into what he would rule if confirmed. With the universally acknowledged caveat that a judge’s mind can change given facts and arguments that persuade him otherwise, there is no rule that forbids him from saying that he’s for or against abortion or the death penalty, as a policy or value.
But for a nominee to do so would require grownups on the senate dais, in the media and in the cheap seats. If Judge Gorsuch didn’t play his role in the Senate dog and pony show, the one where he deflects and begs off any serious answer to a serious question, he would be ripped to shreds. We get the government we deserve, including the Supreme Court. We demand our senators put on a show to sate our need for love or hate, and they do. At the end, Neil Gorsuch will be handed his rose, and America will promptly forget he ever existed and move on to the next episode of outrage government.