Observations on the Gorsuch hearing, Part Two — Al Franken strikes out

Sen. Al Franken has become something of a hero to the left because it was in response to one of his questions that Attorney General Sessions said he “did not have communications with the Russians.” Franken never asked Sessions whether he had. Instead, Sessions volunteered this information.

So this wasn’t Al Franken getting Sessions to misstate something in response to withering questions; this was dumb luck. (It is also lucky for Franken that his admirers in the mainstream media aren’t pointing out the context of Sessions’ answer; he was talking about conversations in his capacity as a “surrogate” for Trump.)

Today, Franken didn’t get lucky. He came up empty. His questioning of Neil Gorsuch was farcical.

Franken began by asking Judge Gorsuch about his dissent in TransAm Trucking v. Administrative Review Board (discussed by Ed Whelan here). This is the one case the Democrats have found out of the nearly 3,000 Gorsuch has decided that they think they can hammer him on. Because Gorsuch resisted allowing hard facts to make bad law, it’s easy to attack him by emphasizing the hard facts.

This is what Franken did. But two other Democratic Senators had already pursued the same line of questioning. By rehashing the case, Franken was just wasting everyone’s time.

After that, things got weird. Franken wanted to talk about the treatment of Judge Merrick Garland by Senate Republicans. He mentioned that when he asked Gorsuch, during the office visit, whether he thought Garland had been treated fairly, Gorsuch declined to answer because this is a political type question, and he tries to avoid politics.

Franken said he accepted this answer at the time, only to learn that Gorsuch has been involved in politics. He cited Gorsuch’s work for the Bush campaign in 2004, and noted that Gorsuch touted this work when he later sought a position in the Bush Justice Department. He also said that Gorsuch is knowledgeable about past confirmation battles.

Having taken pains, and a fair amount of time, to show that Gorsuch isn’t a stranger to politics, Franken returned to Judge Garland. Why, given his past involvement in politics, couldn’t Gorsuch opine on the treatment of Garland?

Gorsuch exploded that balloon with a simple answer: he’s a judge now, and judge’s shouldn’t opine on political questions.

Strike one.

Franken’s next line of questioning was ridiculous. Returning to the 2004 election, Franken noted that Gorsuch worked on the team of lawyers that assisted the Bush campaign in Ohio. He noted that in Ohio that year, Republicans arranged for the issue of gay marriage to be on the ballot. Franken said (correctly, I think) that they did this in the hope of maximizing turnout by social conservatives.

Franken views this as an outrage — as if there’s something immoral about letting Ohioans vote on gay marriage. But Gorsuch was just part of a team of lawyers helping in Ohio towards the end of the campaign. He had nothing to do with the strategy of putting gay marriage on the ballot.

Franken tried to get around this problem by noting that Gorsuch was a law school friend of Ken Mehlman, who, apparently was behind the Ohio gambit. So what? Friend or not, Gorsuch isn’t responsible for strategic campaign decisions made by Mehlman.

Getting nowhere slowly, and seeking an exit, Franken asked Gorsuch about his view on gay marriage. As he had in response to this sort of question all day — and as the last six Supreme Court nominees (at least) have done — Gorsuch declined to answer a question that has implications for how he might vote in a future case.

Strike Two.

Franken’s last line of questioning was about statements made by Reince Priebus at C-PAC last month. Priebus apparently made some comment about how having Judge Gorsuch on the Supreme Court will enable conservatives to win cases for the next 40 years, or maybe reverse 40 years of bad law — it wasn’t clear which, at least in Franken’s telling.

Franken then asked Gorsuch what Priebus meant by his statement.

We all know that Franken isn’t a lawyer. But you don’t need to be one to understand the foolishness of asking a witness what another person’s statement means.

Straining, or so it seemed, not to laugh at Franken, Gorsuch delivered the obvious answer: Franken should ask Priebus.

Strike three.

Franken gave it the old junior high school try today. Maybe that will be enough to keep his base happy. If so, his base has very low standards.

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