Two Congressional Hearings

The two hearings that have dominated the news at the beginning of this week, the appearance of the head of the FBI to announce to the House Intelligence Committee that there was an ongoing investigation of the connections between the Russians and the Trump campaign, and the appearance of Judge Gorsuch at the Senate Judiciary Committee before a vote takes place on his nomination to be a member of the United States Supreme Court, is that neither of these hearings was necessary. Both were occasions that simply demonstrate that Congress thinks it is doing business when it holds hearings. These people love any occasion when they are able to sound off, although it is also possible that most of them couldn’t absorb information if it was presented to them only in the form of documents.

Director Comey could simply have released a statement to the press that an investigation was underway, its second paragraph (or sentence) stating that there was no evidence to back up Trump’s charge that Obama had engaged in surveillance of Trump Tower. Indeed, during the course of the hearing, Comey didn’t say much more than that, refusing to answer most questions. Democratic members of the committee simply peppered him with information already available in the public domain that suggested a collusion between the Russians and the Trump campaign, and all Comey replied was that he could not answer that question. The hearings got press because of the fact of the investigation not because any new information had been generated about or from the investigation. The mystery of why Comey had been willing to announce that Hillary was again under investigation just nine days before the election, only to fold that investigation a few days later, while not revealing that the investigation of Trump had begun months before, remains unexplained, though Comey’s announcement might have had more to do with her defeat than did the leaks perpetrated by the Russians. No one on the Intelligence Committee asked why even though they had him sitting there in front of them. That was perhaps because Democratic Congresspeople want to stay on his good side now that he is pursuing Trump and Republican Congresspeople do not want to call any more attention than they have to to the extent to which the recent Presidential election was improperly influenced. And so Comey was let off the hook.

There is, at this point, no point to nomination hearings for Supreme Court Justices. No nominee since Bork has tried to have a serious discussion at a nomination hearing. The nominees stick to their brief, which is that they are not political figures and decide the law only on the basis of the law, not on the basis of their private beliefs. That is what Gorsuch said over and over again today, to both the amusement and annoyance of Senator Franken, who I thought his most effective questioner. Franken pointed out that Bannon and Privis thought of Gorsuch as suiting their agenda for the overhaul of the law, and that Conservative Senators had been citing lately a case in which Gorsuch ruled in a way that was to their satisfaction. Gorsuch might say he was above politics, but Franken was onto the fact that his nomination was deeply political. Gorsuch makes a big deal of the fact that he is in the majority almost all of the time, but that is not the point, which is that when there is a controversial ruling to be made, he lines up overwhelmingly on the Conservative side of the line. He would be a reliable Conservative vote, more so, according to the New York Times, than Antonin Scalia, the ever cited Conservative icon. Aside from some notoriously swing vote Justices, most Justices are reliably one thing or another, Souter and Warren having become reliable Liberals, just as Sandra Day O'Connor was a reliably unreliable Justice. A judge has a constant mindset, the result of years of thought about legal matters, just as is true with other people who deal with texts, whether literary critics or historians, and that mindset or style of decision making gets trotted out on every new occasion when it has to be applied, however much it may be that is expedient for judges to claim, and not just at Senate hearings, that they are as objective as natural scientists. So judge the nominees on character issues, on whether they are felons or tax cheats or racists, and let their records as to their mindsets speak for themselves. That will save us from having to listen to self-serving rhetoric that makes judges into demigods. No need for Senate hearings at all.

I would vote against Gorsuch, who may very well be a nice fellow, because I don’t like his decisions, never mind how he explains his legal philosophy. And that is quite aside from the issue of Merrick Garland. There has to be some payback for that lapse from Constitutional expectations, which are that the Senate will consider a nominee in a timely manner. If that leads to the nuclear option, whereby Republicans change the rules so that they can get their nominee through the Senate, so be it. It is time  for Republicans to learn there is a price to pay for their disregard of procedure when a procedure doesn’t suit them. And, anyway, it would just strengthen a sense of how anarchic is the Trump Administration, which would make it easier to deal with an impeachment situation should that arise.