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.

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3 Responses

  1. Joe says:

    Well, I hope Judge Garland’s name will be brought up. Some statements by Democrats thus far haven’t done that enough. One of my own senators put forth an extended comment against Gorsuch and didn’t even mention Garland in it. The Republicans did something significantly wrong and not enough people care. Too many Democratic senators didn’t do much as it occurred, in large part probably because they figured Clinton would win. We will also get hackneyed defenses including the assured assumption Democrats would have done the same thing. (1) It still would have been wrong if everything was equal. (2) I still don’t think they would have since they are more risk adverse about these things.

    I think hearings are of some value & the “not revealing” part is somewhat overblown. But, part of it is what is seen as acceptable questioning. The Judiciary Committee is fairly narrowly divided between the parties. The minority party can get serious questions in. And, it’s partially what the majority party senators are willing to press. People like Sen. Specter felt it was their right to strongly press, no matter who was President. Finally, not sure the split between the Senate/POTUS is the mere deciding factor here, especially since until recently [with special exceptions] the justices got so few dissenting votes in the Senate from either party.

  2. dht says:

    This is, IMO, one of the weaknesses of our system of checks and balances. In theory, when faced with a Senate controlled by the opposite party, presidents will nominate someone who is acceptable to enough of the Senate that the nomination is confirmed. In reality we see a situation where nominees are voted down, or, as with Judge Garland, simply ignored.

  3. Joe says:

    ” someone who is acceptable to enough”

    Like someone older and who the other party repeatedly said was a very good choice. Merrick Garland.

    This was not typical behavior. The Democratic Senate confirmed Kennedy, Souter and Thomas (if it wasn’t for the sexual harassment charges, it wouldn’t have been so close). Bork with cause was seen as not an acceptable compromise choice.