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Tuesday, March 21, 2017

The Bizarro Justice

Gorsuch in his college days, reading William F. Buckley
The hearings are underway on the nomination of Neil Gorsuch to the Supreme Court. There was a time when I would have watched this like a sporting event. The Bork hearings in 1987 were riveting TV, and I even tuned in for less thrilling hearings of David Souter and Sonia Sotomayor.

But I just don't have the heart to watch the hearings of a man who is a pretender to the throne. I don't mean he's not qualified--I imagine Gorsuch woud have been a top candidate of any Republican president--the issue is that the seat should have been already filled by Merrick Garland.

When Justice Antonin Scalia died February before last, President Obama, doing his duty, named Garland as his choice. He was certainly a left-leaning judge, but not a firebrand ideologue. He was a man whom Orrin Hatch, troglodyte from Utah, said he would vote for. But all of a sudden the Republican party, flush with power, decided that the "new" president should get the vote, forgetting that Obama had ten months to go in his presidency. It was an unabashed power grab that has forever tarnished the "advise and consent" portion of the constitution.

The gambit worked, and Garland was never scheduled a hearing. Trump was elected, and now Scalia will be replaced by Gorsuch, an originalist who once ruled that a trucker who left his cargo for fear of freezing to death could be legally fired. Gorsuch, who is the first potential justice who is younger than I am, is one of those college conservatives who are so loathsome and drive reasonable people to want to punch them in the face. Gorsuch graduated from Columbia in 1985, and ran a Henry Kissinger quote by his picture: "The illegal we do immediately, the unconstitutional takes a little longer." In his prep school yearbook, he cited himself as founder and president of the "Fascist Forever" club.

Both of these might be jokes; the problem is that conservatives usually aren't funny. I did a lot of research back in those days about college Republicans for an aborted book, as it was the time of right-wing groups on campuses making a lot of noise, especially the Dartmouth Review, which trashed an empathetic South African shanytown on the pristine green. Two of their illustrious members were Dinesh D'Souza and Laura Ingraham.

So, the question now before the Democrats is what strategy to take? So far the questioning by the Democrats has not been particularly rigorous--only Al Franken dug into the trucker case and finally called the nominee absurd, and questioned his judgment. Meanwhile, the Republicans are playing Bizarro World. That's the alternate Earth from the Superman comics, made famous in an episode of Seinfeld, in which everything is the opposite. We got to hear Hatch say that the president should be given deference in his choice, a flat-out reversal of his stance last year. The same could be heard from the likes of Ted Cruz, who before the election declared that none of Hillary Clinton's presumed nominations would get hearings. The Republicans are truly gifted at speaking out of each side of their mouths, sometimes at the same time.

What to do, what to do? There's not much, really. Gorsuch will be confirmed, and might get a few Democratic votes (Joe Manchin and Heidi Heitkamp, I'm looking at you). If the Democrats were to attempt to filibuster, the GOP could change the rules, adding Supreme Court justices to the straight-up-and-down voting of other federal judges. This would be good, ultimately, because the whole filibuster process, making 60 a majority instead of 51, is inane.

Or do they swallow the bitter pill and wait to see if Trump gets another nomination and picks somebody even worse? Then there would be no filibuster opportunity.

Trump will have his way as long as the Republicans hold the Senate. If Trump continues to be completely unpopular and drags the party with him, lightning may strike and the Dems could take the Senate in 2018 (it's not likely, given who is up for election). Then they could play the game and deny Trump (if he's still in office) any hearings for any judgeships. Turnabout is fair play, as Peter Marshall used to say on Hollywood Squares.

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