Just a thought I had this afternoon while surfing around to find something interesting from today’s Gorsuch hearing and discovering that, despite endless hours of questioning, the well was dry. Every few years we get a SCOTUS vacancy and political media braces for the spectacle of the nominee entering Thunderdome to match wits the Judiciary Committee, annnnnd … nothing interesting ever happens, does it? Gorsuch’s hearing was so boring by the evening of day one that Jeff Flake took to asking him if he’d rather fight a horse-sized duck or a hundred duck-sized horses. Ben Sasse relayed a text from his wife about Gorsuch’s amazing capacity to sit there for hours on end without needing to pee. “Thunderdome” is now basically a Capitol Hill Dangerfield’s franchise.
How come? That is, how come expectations still tend to be high for these things when we’ve had nearly 30 years of dullsville confirmation hearings? Not a single justice has been Borked successfully since Robert Bork himself. Clarence Thomas came close, but that was an unusual exception to the rule: Democrats had scandalously juicy allegations to work with courtesy of Anita Hill. The Bork and Thomas hearings gave Americans a false impression, I think, that confirmation hearings would routinely be riveting, contentious spectacles on which the nominee’s fate depended. Since Thomas, though, they’ve all been farts in the wind. The only two nominees in the past 30 years to fall short of being confirmed ended up being done in before they ever received a vote in the Senate. Harriet Miers’s nomination was withdrawn by Bush after conservatives revolted and Merrick Garland got bottled up because he had the misfortune of being nominated in an election year. No one’s been voted down by the Judiciary Committee or the full Senate since Bork and no one’s had anything like a truly difficult hearing since Thomas.
And there are good reasons for that. One, thanks to Bork, is that presidents tend to stay away from controversial picks now. Look no further than Trump himself: He could have nominated William Pryor and risked nuclear war with Democrats over Pryor having once called Roe v. Wade a constitutional “abomination,” but rather than gamble he opted for the genial, completely inoffensive Neil Gorsuch. A deeper reason, though, is that there’s an obvious playbook that’s developed for these hearings that all but guarantees confirmation. Be as noncommittal as you can, insisting as often as necessary that you can’t comment on any case that might end up before the Court, and pay copious lip service to the value of following precedent without ever quite saying that precedent should be followed in all instances. Roe v. Wade? Absolutely a precedent in good standing. A “super-precedent” that can and must never be revisited, though? Well … it would be imprudent for a judge to declare any ruling untouchable. If the Warren Court had done that, we’d still have segregation in public schools. You know how this song and dance goes because you’ve watched and listened to it many times since 1991. An intelligent person (which all nominees are) who prepares diligently (which all nominees do, with ample institutional help from the White House) simply can’t fail to avoid trouble at these things so long as they choose the noncommittal, low-risk path.
That’s why I was surprised yesterday at seeing some social cons grousing about Gorsuch’s Roe answer. The object here is to get confirmed and he gave the correct answer towards that end. It’s all just kabuki. Follow the script. In this year of all years, with the left pushing Schumer to filibuster Gorsuch on principle to avenge Merrick Garland’s honor or whatever, Gorsuch should want to present himself as being as unobjectionable as humanly possible. That way, if Schumer filibusters anyway, McConnell can nuke the filibuster with little political problem: Judge Gorsuch is eminently qualified, he’ll say (correctly), he gave not a single answer at his hearing that would disqualify him from this position (also correct), therefore Schumer’s obstruction is petulant and illegitimate and deserves to be overridden with brute force. The duller you can make your hearing, the greater your chance of success. Both parties have digested that lesson and implemented it strategically, with great success, year after year. So why do we continue to hype these snoozefests? Apart from the very off-chance of something scandalous being introduced, why do we continue to hold marathon hearings at all? If a nominee has an unusual legal or political belief, or if he/she has been accused of misconduct of some sort, by all means drill down on it. But otherwise, why waste everyone’s time?