Senators Try To Pin Gorsuch <br>As Confirmation Evolves <br>Into Elaborate Charade
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
What a charade. The Senate confirmation hearing for President Trump’s Supreme Court nominee is liable to drive Americans nuts. There ought to be a way to suspend the senators’ pay for every hour one of them talks.
Or wheezes. I mean, I’m pushing 71 and it takes me an hour to answer the phone. But I’ve got nothing on Senator Patrick Leahy. In Vermont, they’ve got a horse-drawn plow that talks faster than he does.
And what’s the purpose, other than to evade the voters? The confirmation process has become an elaborate Kabuki play in which the Senators try to get the nominee to tell them how he’s going to vote so that they can oppose him even though he’s qualified.
Not that this particular nominee, Judge Neil Gorsuch, isn’t part of the problem. In the movie version, he could be played by Jimmy Stewart. And they could even use the old title “The Man Who Knew Too Much.”
And who won’t stop reminding you of it, either.
This struck me when Mr. Leahy was trying to get Judge Gorsuch to endorse extending constitutional rights to refugees who have never been within 1,000 miles of America. That would be good news for the 9th Circuit Court of Appeals, which has been blocking Mr. Trump’s so-called travel ban.
Mr. Leahy, seeking to goad Mr. Gorsuch into endorsing the 9th circuit, asked whether “the president’s national security determinations” are “reviewable by the court?”
“No man is above the law,” Judge Gorsuch growled.
“It is being asserted that their national-security determinations are unreviewable by the courts,” Mr. Leahy plowed on. “Do you disagree?”
That’s when Judge Gorsuch launched into a disquisition on the Youngstown Steel case, in which the Supreme Court, in the middle of the Korean War, stopped President Truman from seizing the steel mills.
Judge Gorsuch quoted Justice Robert Jackson’s famous opinion declaring a president’s power is at its maximum only when he is acting with express authorization of Congress. But Judge Gorsuch pulled his punch.
“Listen, you schmekels,” he could have said. “You passed a law saying a president could ‘suspend the entry’ of ‘any class of aliens’ as ‘he may deem to be appropriate.’ So don’t try to hang this problem around my neck.”
The senators made another attempt to get themselves off the hook in the case of the most famous working stiff since Joe the Plumber. His name is Alphonse Maddin, better known as The Frozen Trucker.
The hapless trucker (whose case I touched on last week) had been fired for leaving his iced-up trailer by the side of the road on a freezing night. One senator after another got on Judge Gorsuch’s case for backing up Mr. Maddin’s employer.
What’s so maddening is that Judge Gorsuch was siding with the Senate against the administrative agency that bent the law to benefit the trucker. So the senators are blaming Judge Gorsuch for trying to enforce the law the Senate wrote.
Judge Gorsuch did swat aside Senator Coons’ attempt to trip him up over Hobby Lobby. That’s the case in which a company owned by a religious family was excused from ObamaCare’s birth-control mandate.
Coons was upset because Judge Gorsuch had ruled in favor of the religious family, even though they operated a for-profit business. Judge Gorsuch retorted that Mr. Coons’ position “was adopted by precisely two justices of the Supreme Court.”
Senator Graham delivered a dirge about how much trouble the confirmation process is in after Harry Reid, then majority leader in the Senate, and his fellow Democrats evaded the filibuster and, in 2013, used the so-called “nuclear option” to get left-wing judges confirmed to lower courts.
The weird thing about it is that the Republicans may yet have to use the nuclear option to get Judge Gorsuch onto the high bench. So it’s hard to figure what the sage of South Carolina was thinking.
What a waste of time. It’s been more than a month and a half since Mr. Trump nominated Judge Gorsuch, and he’ll be lucky to get a vote before the end of April. And if he’s confirmed, no one will be able to hold him to what he promised.
Mr. Graham did, however, manage to get to one of the elephants in the room — the abortion question. He inquired of Judge Gorsuch whether Mr. Trump, when he interviewed the judge, asked him to over-rule Roe v. Wade.
Mr. Trump did not, the judge allowed. So Mr. Graham asked what Judge Gorsuch would have done if the president had asked.
“Senator,” the judge claimed. “I would have walked out the door.”
When the senators pressed on, though, Judge Gorsuch kept his seat.
This column originally appeared in the New York Post.