Tuesday, July 17, 2018
Opinion

Ruth: Gorsuch's bland confirmation hearings

In a court of law this would be undisputed prima facie evidence.

For it has been clearly demonstrated that federal appellate court Judge Neil Gorsuch is eminently qualified to become a justice on the U.S. Supreme Court, having survived a brutal grilling by the Senate Judiciary Committee in which the nominee had to defend his controversial positions on trout fishing, hiking, rodeos, riding sheep, basketball and the meaning of life. We can probably stipulate he thinks puppies are the cat's whiskers.

We're into some real Louis Brandeis territory here.

As a practical matter, it is likely that Gorsuch will be an able jurist once he is inevitably confirmed. It's not as if President Donald Trump tapped Steven Tyler for the high court because he did such a bang-up job as a judge on American Idol. But perhaps it's best not giving him any ideas.

The problem, of course, is that Supreme Court confirmation hearings hardly have become a reliable exercise in determining if one is fit to serve on the highest court in the land since the nominees have proven to be deathly afraid to reveal very much about their qualifications. It's almost as if to be elevated to the court, one must take a vow of omerta meets Marcel Marceau.

Robert Bork is often cited as the cause for all the reticence, recalling the House of Cards villain Francis Urquhart's common refrain: "You might very well think that. I couldn't possibly comment."

Bork, who was nominated to the bench by Ronald Reagan in 1987, possessed a keen legal mind and a brilliant grasp of jurisprudence. Just ask him. His scholarly legal acumen was widely available through his voluminous body of writing. And that proved to be his downfall.

Through the blurry prism of history, Bork's nomination process often has been characterized as unfair, highly partisan and rushed. But none of that is accurate.

Bork did indeed get a full and fair hearing. And out of that process, the nominee revealed himself to be a really, really scary guy. His views on women's rights were something out of the Middle Ages. He was less than supportive of the Voting Rights Act, which would have qualified him to serve on the Supreme Court — of South Carolina. He was an advocate for expanding the powers of the presidency. He was rather squishy as to the citizenry having an inherent constitutional right to privacy.

The nominee wasn't rejected because he was conservative. He was rejected because he was an extremist.

The hearing on his nomination did exactly what it was supposed to do — explore a judicial candidate's views and temperament for the job. And Bork was found wanting.

It is contrary to the revisionism that Bork was a tragic victim of partisanship. But the nominee was rejected by the Senate by a vote of 58 to 42, with six Republicans voting "nay." No matter. Since the Bork era, court appointees have feared having their nomination "Borked" if they dare to be too candid in expressing themselves. So we have a U.S. Supreme Court nominee publicly making out with his wife before the hearing starts and singing the praises of The Hitchhiker's Guide to the Galaxy. Not quite the stuff of Sir William Blackstone's Commentaries on the Laws of England.

Since Bork, only two other nominees have been forced to withdraw their nominations. Douglas Ginsburg, who Reagan picked after the Bork debacle, stepped aside after he admitted to smoking marijuana as a college professor. How quaint. And President George W. Bush's pick of Harriet Miers quickly imploded after it became clear that Joe Pesci's character in My Cousin Vinny had a sharper legal mind.

And yes, there was the ill-fated nomination by President Barack Obama of Judge Merrick Garland, who had an impeccable professional and personal reputation, but was denied even a hearing by the Republican-controlled Senate. Whew, no partisanship there.

Gorsuch's confirmation has never really been in doubt. He has a laudable legal resume and lengthy experience on the appellate bench. And let's be honest. He looks and acts like a judge, which in these days of the Star Wars bar scene reflecting the inner workings of the White House is no small accomplishment.

Perhaps the only stone left unturned in fully vetting Gorsuch is the most pressing of questions, which still could be raised by that vigorous interrogator, Texas Sen. Ted Cruz.

"Judge Gorsuch, if you were a tree, what kind of tree would you be?"

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