Friday, March 24, 2017

Courtship


Having been through it a few times, we've all come to understand that Senate hearings on Supreme Court nominees reveal exactly nothing. Neil Gorsuch, it turns out, believes in following the law. He thinks no one, not even a president, is above the law. These attestations are the equivalent of a surgeon promising to wash her hands and put on gloves before poking around in your entrails.

And we know senators of the nominee's party will try to get at how much they love their mother, and those of the other side will try to get him or her to commit to certain judicial views or to comment on various Court decisions from the past. The nominee will, of course, not. When, like Gorsuch did, the last few Republican nominees stated one thing or another is "settled law," it has turned out to mean, "look out!"

Given the powerlessness of Democrats, it's a foregone conclusion that he'll be approved. (Unless a couple of R Senators take to heart the concept of waiting to see if Trump is going down.) Still, I think there have been some points made that, in a rational world which might or might not exist in some parallel universe, would cause a nominee (and American citizens) to stop and think.

In particular, Senator Sheldon Whitehouse's disquisition on the countless 5-4 decisions in favor of corporations and against individuals, and his comments on the combined $17 million spent by shadow groups to prevent a hearing on Merrick Garland and to promote Neil Gorsuch, are worthy of notice. What, he wondered, did those unknown (thanks to "Citizens United") corporatists expect to get for the money spent? It's worth a viewing. So is Al Franken's time in the barrel.

Pretenses from both sides notwithstanding, nominations to the Supreme Court are anything but apolitical. They're as political as it gets. Thus, Mitch "Hypocrisy is Us" McConnell's blocking of even a hearing for Garland. Thus John Roberts' lie about "calling balls and strikes."

It's indisputable, as demonstrated by those 5-4 decisions and the predictable sides taken, that most cases making it to the Supreme Court have legitimate legal arguments on both sides. Which means decisions are based not on strict interpretation of the law but on political prejudices; or, more generously, colored by life experiences. "Original intent" is a shibboleth.

So whereas my inclination, having grown up in the home of a state Supreme Court judge, is to look only at whether a person is qualified (which Gorsuch is), the reality is that it's not unreasonable for senators to consider a nominee's political persuasion and vote accordingly. It is, after all, what motivates their decisions and it's the reason they were nominated in the first place. And there's a lot at stake.

[Image source]

2 comments:

Professor Chaos said...

I don't know why any jurist would claim to follow the original intent of the framers since they intended for black people to be slaves, they intended for women to be non-voting 2nd class citizens and couldnt picture a weapon more formidable than a musket.

Anonymous said...

And they intended that any wealthy person could buy as much government as (He or She) wished!

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