Friday, March 24, 2017

My feelings have nothing to do with it! The Gorsuch nomination hearing.

I was expecting Justice Gorsuch to be a little more stoic. He was friendlier, smiled more and was quicker to engage with the usual lack of wit it seems most public figures are saddled with than I had expected.

I just spent four days watching the hearings. The first day was speeches by the senators and the last one by the judge. The second and third day was the senators questioning the judge - the left trying to make him sound like a nightmare and the right like the Lord's right hand man. If you read The Passion Play of Sonia Sotomayor, which I wrote after her nomination hearing (like him, I thought her qualified) you will see it is all nonsense. There it was the Republicans trying to make her sound biased and unsuitable for the job and the Democrats finding her not answering questions just fine - the exact opposite of this week's hearing. Today, for example, Senator Grassley, the chairman, prepared the judge to be asked a lot of questions he couldn't answer. With Sotomayor, Grassley was one of the senators trying to pin her down so that she could never rule in a way he didn't like. It never works! To be fair to him, he admitted in this hearing that he has done what the Democrats did at Gorsuch hearing himself. Read the Sotomayor post for more details. And Sen. Schumer, who has taken the floor to excoriate Gorsuch, did exactly the opposite when Sotomayor took the same stance as Gorsuch on answering questions.

Senator Graham also spent some time criticizing his left leaning associates for how they were treating the judge. But, if you watched the Sotomayor hearing (or read my post) you will see he too has played the same game. There is a difference in that Graham and Grassley were a lot more polite than some of the Democrats, particularly Sen.Whitehouse and Franken. The other Democrats on the committee were at least polite, if critical, which is always fine.

Frankly, the side that is defending the judge always looks nicer and the other side always looks angry and ideological. But, most are biased. There questions and demeanor often depends on who is nominated. I have no doubt that if Justice Garland had had his hearing, the roles would have been reversed.

I did go back and read my Sotomayor post. I think I was fair. I criticized her a lot (because she did seem a little more ignorant of constitutional law and legal philosophy than other past nominees), but I thought she was qualified too. The one thing I got wrong about her was that I did not think she would be as ideological as others thought. She is, as much as any of the rest of the them, if not more so than some others.

Gorsuch is obviously qualified by education and experience. His adversaries acknowledge that. What they are doing is attacking his character and judgment by taking a few cases of his 2700 - maybe 3 or 4 of them, and thereby finding him "for the big guy" and to have poor judgment. To the contrary, his former clerks, his judicial peers and friends assure us he is the nicest man who ever lived and "only follows the law" - ruling sometimes for the little guy, sometimes for the big guy, and never taking into consideration the "identity" of the litigant. And that is clearly what this is about, as are many conservative-liberal issues. If you listen to the Democrat senators questioning him, that is pretty much the nature of the opposition. The result, not the analysis matters to them. If he will not become a liberal and pledge to rule for unions, LGBT, minorities, plaintiffs, etc., then he is too biased to be a judge, in their view. It's ridiculous, of course, and they don't actually say it out loud, but that's the way these hearings always are for a long time.

I am critical of Gorsuch for a number of tactics which are mostly common to all nominees. First, his mantra that he is following the law and his personal views don't matter is ridiculous, whatever the measured tones he repeats it in. What does follow the law even mean? They all say they are doing that. They obviously differ as to what the law means. It is a fantasy that who they are and what they think does not fit into it. There is no coal black line for the justices to follow in controversial cases. To be fair, every Supreme Court nominee and judge, every senator, insists on the same fantasy. I covered this in detail in the Sotomayor post and won't repeat it all here, but, in short, judges are humans who bring their experiences to the bench. To suggest that they are stoic marvels who do not let emotion affect their opinions is like saying athletes who perform well under pressure do not feel any. The only bigger fantasy is that some hard-rock law exists that they can follow. 

Another phony mantra is that precedent controls. All hail precedent. Well, clearly we need precedent or none of us would have any idea what the law is at all. We need consistency, even when it is arbitrary, as it often is. But, most of us don't want the courts to follow precedent when we are passionate about the result. For example, some judges break the rules about not saying whether they approve of cases when it comes to Plessy-Brown, Dred Scott and Griswold (prophylactics). Some go as far as saying they agree with them. I think they do this not because they are settled law now, but because they are culturally settled and no one will blame them for saying it. Some just say that they are precedents that are due great deference. But, in truth, most of the controversial cases are about overturning precedent or finding some way to diverge from it. For example, Brown overturned Plessy. Roe diverted from the traditional rule of law that only actual cases or controversies could be decided, as it had to in order to make a decision - after all, the pregnant woman had to have long delivered a baby or aborted it at the time of the court's decision. We now know in fact she had an abortion.

Gorsuch followed this tactic with Roe. We can reasonably surmise that no Republican president is going to nominate a judge unless he knows he or she is is pro-life, even if they wouldn't talk about his personal feelings. But, Gorsuch, recognizing he had to say something, was effusive in stating that Roe was long held precedent, upheld numerous times. He did the same with Brown. When asked why Justices Roberts and Alito said they agreed with some cases and he wouldn't he fell back on - there is no daylight there - in other words he feels the same as them, but he felt he shouldn't say it out loud. So, wink, wink, nudge, nudge, as long as I don't say it, I can hint it. The truth is that it is hard not to say that you agree with important cases that virtually everyone agrees with when a senator is asking you to do so. He could have said, Roberts and Alito bowed to pressure when they felt it was safe and that he would not. 

Both sides hate precedent when it results in a ruling they don't like. It is rich to hear these senators and witnesses complain about what they see as fixed precedent. Almost all of the revolutionary cases involving the bill of rights, free speech, religion, freedom of unlawful search and seizure, right to counsel and so on or the 14th amendment (due process and the like). Many were decided in the Warren Court years, and involved overturning long held precedent. The liberals won these cases over conservative opposition. Now, there are many conservatives who are more passionate in defense of these rights than Democrats. Not only Brown, but many of the cases involving voting rights or the Civil Rights Acts involved overturning precedent. Sometimes they carve out exceptions, in other cases they twist words, and sometimes they expressly overturn rules. It all comes down to the same thing. They change the law because it has become socially or politically untenable.

The law of precedent is a labyrinth which can be summarized briefly. Justices follow prior case law up to the point that they feel they can substitute it with rulings with which they are more comfortable. There is almost always a way to justify it with precedent. If they can't find any, they just ignore it and apply "common sense," or accepted American values or some such other nonsense. 

But, back to Gorsuch's demerits. He is wrong that Bush v. Gore was precedent. It has been used as precedent, but it expressly states that it was not precedent.  

His answers were often robotic. Perhaps he thought giving the same slow answers about his feelings not mattering and precedent controlling was effective. It was not. It did make him look like he was trying to drag it out. Once he gave that answer, he could have just said same answer and not wasted time. But that would mean more questions, so it is probably taught to them. 

I did not really like his jokey manner much. He is entitled to it and I don't think it means he shouldn't be a judge, but I thought he was a little too ready to make a joke. Don't joke in public unless you are funny - and few are.  I especially disliked his Fozzy-Bear voice he uses when emphasizing something. It's not that I don't have annoying vocalizations (I've heard myself on tape), but I'm not in a nationally broadcast hearing to confirm me for one of the most sanctified, if not the most sanctified office in the world. We want sober nominees and not so much giggling ones. Frankly, he did not come off as genuine at all. I found many of the other justices in these hearings much more genuine. Sam Alito comes to mind as very matter of fact. But this is no reason to reject him either.

The Democrats fixated on a few cases where they didn't like the result. I thought this spoke very highly of him. If out of 2700 hundred cases they could criticize only a few, he must be some justice. He pointed out how often he was in the majority and even part of a unanimous decision. He had been reversed only once by the Supreme Court (though few cases get up there), in a way twice with yesterday's ruling on the education law.

And, I have to say, looking at the cases they picked on, I though he was wrong too. Foremost of them, perhaps because it was easiest, was the "Maddin" case, about a truck driver, who was fired after the brakes on his trailer froze. Against orders, he unhitched the trailer and drove the truck to safety (rescue came 15 minutes later, but he couldn't know that) rather than wait there to freeze and possibly die or to unsafely tow the brakeless trailer. He alone dissented from a ruling favoring the truck driver under a whistle-blower safety act because he said, in driving the truck, he operated it - the act protected him from refusing to drive in an unsafe situation - not driving it.  Talk about splitting hairs. The guy reported the problem and had to save his own life.  It was clear to the majority what he was refusing to drive was the truck hitched to the trailer, and that was clearly within the meaning of the Act. 

I also thought he was wrong in the education case involving the autistic boy who was not getting sufficient services under the law. The boy's father was one of the witnesses on the last day. Without going into too many details, his view of the law seemed exactly the opposite of what congress intended, as the Supreme Court found during the hearing, though on appeal of another case. The father of the boy put it best - why would they have even bothered to pass an act if the schools weren't going to really be required to do anything much?

He also disagreed with the Hawaiian Dem. Senator, Mazie Hirono, who was quite annoying, but absolutely right that in a magazine article he had criticized liberals and intimated that only extraordinary cases should be brought. He said at the hearing that it didn't sound like him. Well, it doesn't, if you go by him now, but he used to be much more partisan before he was a judge. In fact, the Democrats spent a lot of time criticizing his memos from when he worked for Bush. They were pro-torture for one thing, which is a little uncomfortable. It is not an unfair criticism, because it does describe how he felt as an adult, but it has to be tempered with the fact that being a judge does change a man (as he pointed out). His own claim sounds awfully questionable - he was a lawyer stating his client's position.

His strongest point is that he has been involved in 2700 cases and been reversed once (he says maybe once) and the Supreme Court decision yesterday would count as two, even if it is a different case. If a few cases to criticize is all they can find, that is pretty good. Even the Buddha probably stumbled once in a while.

The last criticism I have of him - though, again, I would vote to confirm - is that he would not acknowledge that it is important whether a Democrat or Republican president appoints a judge. He refused to get involved with politics and insisted that he doesn't see judges as Democrat or Republican. Nevertheless, it is so obvious it matters, how can it be denied. Trump probably would not have been elected if he did not promise to nominate conservative judges. That is something some people cared deeply about - some voted for him only because of it. And, as we know, the Republicans refused to even give a hearing to Justice Garland, who probably is as decent and impressive a nominee as could be found on either side.

The bottom line. These hearings are mostly a total waste of time. You learn almost nothing and get to hear a lot of speeches from the senators. Even floor speeches by senators are a waste of time. In the real world, if they want us to know something, they tweet it, or maybe hold a press conference. Me and a handful of other people watch C-Span. Very few people have ever listened to even one speech from a senator or member of congress.

If I haven't said it before in this evalovin' blog, I am for a constitutional amendment which would give all presidential nominees of any kind an up or down vote in a maximum of 30 days or they would be automatically confirmed, just the way presidents only have a certain amount of time to veto a bill.

Obviously, that is not going to happen. Amendments are far and few between. In the meantime, though I know Sen. Reid exercised what is called the nuclear option with respect to getting rid of the filibuster on votes for certain lower justices, it was the right call. And I hope, if the Democrats filibuster Gorsuch, that McConnell exercises it with respect to all judges - I'd prefer all nominees.

I fully expect Gorsuch will be a Supreme Court Justice soon. And I seriously doubt that all three Justice Ginsburg and Breyer are both going to last the entire four years of Trump's term, particularly Ginsburg. He will probably get another. And, if the Democrats are going to filibuster anyone he puts up and not vote for him (it used to be that almost every judge was unanimously approved), Trump may go very conservative indeed.

In modern times, even if you count Justice Garland as a 46-54 rejection (that is, count all R votes as no and all D votes as Y) Democrats have historically tougher on Republican nominees than visa versa. I start with Reagan, simply because that is when I became politically aware, or more so anyway, and also because it is reasonable to call that modern times in terms of the Supreme Court (if you go back further though, it really doesn't change much - . He nominated 5 justices. 3 were unanimous. O'Connor, Scalia and Kennedy - Scalia being the shocker, as he was already a little contradictory.

Rehnquist's Chief Justice nomination was, unlike the other 3, controversial. In the end, he won, but nowhere close to being unanimous - 65 to 33. Of the 33 no votes, 31 were Democrats.

Justice Bork, the only Justice to lose a floor vote since Nixon's two failed appointments, lost 42-58. 52 of the nos were Democrats - all but 2. Personally, I found Bork a little weird, which may not be fair, as he was "borked" and it may have given me a bad impression. I was also still very liberal. But, some of his opinions seemed so 19th century.

George H.W. Bush got two nomination. Souter won easily, 90-9, but Thomas was roasted for allegedly telling a few dirty jokes (see last week's post) and barely won, 52-48. 46 of the 48 nos were Democrats.

We now turn to the first Democrat President's nominees. Clinton nominated Breyer and Ginsburg. She was confirmed 96-3 and he was confirmed 87-9. Only a few nos, but all Republican.

George W. Bush had much greater trouble. He nominated three and two were confirmed. Harriet Miers was clearly unqualified and had to be withdrawn. Of the two that got votes, Justice Roberts (CJ), widely considered to have had the most impressive performance of any nominee, could only must a 78-22 win. All 22 nos were Democrats. Sam Alito had even more trouble. He won 52-48, but 24 senators voted to filibuster - 23 Democrats and one independent who caucused with the Democrats. In the floor vote, all nos were Democrats except for the same independent and one Republican who later became a Democrat.

With Obama, for the first time, Republicans started getting into the partisan game when it comes to the Supreme Court, but until Garland, still not as lock step as Democrats. Sotomayor won 63-31 (all nos Republican) and Kagan 63-37 (all nos Republican except Ben Nelson, who frequently voted with Republicans).

Garland, of course, the Republicans blocked, refusing to have even a hearing. But even if we count him as 54-46 against, with all Republicans voting no, historically, the Democrats clearly have given Republicans a much harder time in the last 30 or so years than the Republicans have given Democrat nominees. I think at this point, all gloves are off, although I suspect Senator Graham and a few other Republicans might have voted for Garland. He possibly could have won although doubtful.

That's all, folks.


  1. I agree with almost all of this. Particularly the BS lauding of precedent. And I definitely think the cases that are culturally accepted are the ones nominees will be willing to comment on. Which is one of the reasons fewer cultural issues should be the subject of federal oversight and therefore the courts.
    I agree he was wrong on the education case. I think he was right (although extremely literal) in the truck driver case.
    I also like what he said to the dim bulb from Hawaii- we do have too many court cases.
    In general I agree that "following the law" is mostly meaningless but Conservative judges (much more than liberal) tend to apply the denotation of the words in a statute. You actually seem to agree as evidenced by our title about feelings. Liberal judges and politicians will follow their feelings to bring them to meanings of words other than their definition. That is not their job.It is also culturally dangerous to allow words to have fluid and ever changing meanings.
    I have no idea how good he will be in the long run but will hope for the best. Meanwhile if we could get Ginsburg and Breyer to that hunting camp Scalia wen to.........

    1. Thanks for your comment. My title though was just parroting what he said. His personal feelings should have nothing to do with it in some perfect abstract world, but I agree with the Wise Latina speech, even if Sotomayor disavowed it to get nominated. It is impossible not to bring personal feelings onto court and it is better to acknowledge them, so you can try to leave them aside, rather than deny having them and letting them bleed in. The second sounds better, but it is not.

      I just can't agree with the truck (Maddin) case. It was clearly dangerous to drive the truck with the trailer attached with its frozen brakes. It is all one vehicle at that point. If you tap the brakes - the trailer brakes will come on. It is irrelevant that it can be separated. A train is one train, even though it can be separated into cars. He refused to operate the tractor-trailer. The fact that he operated the truck after taking off the dangerous part and drove somewhere to get warm and potentially save his life or health is not a bar. Which, of course, is what the majority thought and is common sense to me. But for the law, he'd have no case. Because of the law, he does.

      As to textualism, I have oftened argued that the constitution doesn't really work in many regards. It is made to be formally amended, which is way to slow and unwieldy a project to be useful. The founders thought it made sense, and it did work for the bill of rights. But, after that, rarely. So we end up with a constitution that should be read, as best it can - it is highly imperfect at best - according to the original meaning. Unfortunately, that frequently makes no sense. And some parts, we really don't know what they meant.

      As to your hunting camp wish, now that's not nice.

  2. I don't give a fig about politics when it comes to the supreme court, I don't even care if the nominee agrees with me or not. One thing matters.... are they qualified, by experience and gravitas to sit on the Supreme Court. Gorsuch is a yes, so was Garland. Unfortunately, we live in a time, which you have commented on ad nauseum, wherein violent partisanship rules the day. C'est ca.

    1. C'est ca? Who are you, Guy Gadois?


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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .