Some Thoughts on the Gorsuch Hearings
We know a few things about Judge Gorsuch’s nomination to the Supreme Court. First, he will be confirmed. Second, Senate Democrats will mention Merrick Garland’s name many times. Third, I think we will learn a lot about Chevron deference, given that Judge Gorsuch has taken a stand on the viability of that precedent and that there is growing academic criticism of Chevron. (A new article in the Yale Law Journal, for instance.)
Some people complain that confirmation hearings for the Court aren’t revealing. I think that this observation is overstated, but to the extent that it is true it’s a result of a structural reality. Not since Justice Thomas was confirmed in 1991 has a Supreme Court confirmation hearing occurred where the President and the Senate were controlled by different political parties. If Democrats controlled the Senate, then Judge Gorsuch (or whomever was nominated), would simply have to answer more questions in order to get confirmed. When the President’s party controls the Senate, by contrast, a nominee can skate through pretty easily.