Observations on the Gorsuch hearing, Part One

I watched the first seven hours of the Senate Judiciary Committee’s hearing on the nomination of Neil Gorsuch. The short version is that Judge Gorsuch was terrific and that the Committee’s Democrats barely laid a glove on him. Indeed, with a few exceptions, their efforts seemed only slightly more than half-hearted.

If the rest of the day went, and tomorrow goes, like the first seven hours, it’s possible that Gorsuch will get the votes of enough Democrats to reach the magic number of 60 votes, thereby avoiding any need for Republicans to change the rules. I’m not going to quote odds on this occurring, but I think it’s more likely to happen now than it was when the morning began.

Gorsuch displayed the same high degree of knowledge, ability to explain the law, humility, respect for the Constitution, and overall judiciousness that we have seen from most recent Supreme Court nominees, especially John Roberts and Samuel Alito. What stood out for me was Gorsuch’s ability to demonstrate his humanity.

Perhaps this comes from having been a trial lawyer who litigated a variety of cases — big and small — for plaintiffs and defendants. I believe, it’s been a good while since we’ve had a Supreme Court nominee with that background.

Gorsuch knows how to talk plainly to people, how to emote, and how to show his humanity. I’m certainly glad I never had to face him in a jury trial.

In terms of substance, I was struck by the fact that the Democrats focused on only one case in which Gorsuch reached a result they found highly problematic (there were a very small number of other cases in which comments in his concurring opinions drew a little fire).

According to Gorsuch, he has participated in approximately 2,700 cases as a judge. One would think that out of all these cases, the Democrats could find more than one to harp on.

If I recall correctly, they were able to do so with Samuel Alito. Even with John Roberts, who had served only briefly on the D.C. Circuit, the Dems found at least two decisions they tried to hammer him with (again if my memory is correct).

Frankly, I’m a little worried that the Democrats apparently didn’t find a batch of highly “objectionable” decisions by Judge Gorsuch. It suggests more moderation than I would like to see.

It also worries me a little that, according to Gorsuch, his decisions draw the fewest dissents of any judge on his court, and his own dissents are as likely to be from opinions by Republican appointed judges as by Democratic appointed ones (if I understood his testimony correctly). President Trump and others present Gorsuch as the next Justice Scalia, but these stats don’t sound Scaliaesque.

The Democrats may sense this, as well. That would help explain why, for the most part, they weren’t more aggressive and more nasty today.

It’s true that the leading nasties of yesteryear — Ted Kennedy, Joe Biden, and Chuck Schumer — are gone, and that Pat Leahy has lost something off his fastball. But I’m confident that the current crop of Judiciary Committee Dems is capable of more obnoxiousness than displayed today. Of the Democrats I heard, only Al Franken (about whom more in a separate post) and maybe Sheldon Whitehouse seemed fully invested in taking Gorsuch down. They may believe he is the best they are going to get from this president.

It will not, by any means, be the end of the world if Gorsuch ends up being more like, say, Chief Justice Roberts than like Scalia. Most of us would prefer another Scalia, but that’s an extremely high bar. The main thing is not to end up with another Justice Kennedy, or worse.

I assume that Leonard Leo and the others who promoted Gorsuch’s candidacy carefully studied his opinions and votes and found them to be consistently conservative, with few if any red flags. The only red flag I saw today, if it rises to that level, was the dog that didn’t bark — that is, the seeming absence of more for the liberal members to holler about.

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