This Is About Destroying the Presidency of Barack Obama
WASHINGTON-In Room 216 of the Hart Senate Office Building on Tuesday, the Senate Judiciary Committee played host to one of the most garish exercises in absurdity in which our politics have involved themselves. On the surface, the committee was conducting a hearing into the nomination of Neil Gorsuch to the United States Supreme Court. However, at its roots, the hearing was the final, concluding chapter in the attempted destruction of the presidency of Barack Obama.
When he is confirmed-and he will be confirmed, because the votes are there and the Democratic opposition is as bumfuzzled as it always is-he will stand on the highest court of the land as the living representation of a sub rosa determination taken in various caucus rooms eight years ago that the first African-American president should not be allowed to exercise the full power of the presidency. Maybe Gorsuch can live with that. He was confident to the point of being smug, and his gift for oily, pious condescension is undeniable. After all, there is great job security on the Supreme Court and the robe is certainly a nice one.
They're clinging like drowning people to the tinhorn argument that the president shouldn't be allowed to nominate someone during an election year. Lindsey Graham was particularly meretricious in this regard, using loose talk from previous Democratic senators on the subject as a counterweight to what his party actually did. He also cited the change eliminating the filibuster for lower federal courts as somehow related to what happened to Garland, which had never happened before in the history of the republic. He also would like a cookie for having condescended to give Sonia Sotomayor and Elena Kagan a hearing and, later, a vote. I'm thinking of starting a Kickstarter campaign.
(Graham then spent about 15 minutes plugging his "fetal pain" act. Gorsuch sat there and looked like he'd been hit in the head with a hammer. "The only reason I mention this is that everybody who takes a case to court deserves a person like you," said Graham, who set a very high bar for sanctimony.)
To be sure, Gorsuch is pretty much the kind of judge that any modern Republican president would nominate. He's practically got the Heritage Foundation logo stamped on his forehead. He's solicitous to the point of tenderness regarding the delicate feelings of America's large corporations. He's very much on the side of religion in American law; he was quite enthusiastic about the 10th Circuit's opinion in Hobby Lobby v. Sebelius, and he joined a dissent that argued that the Little Sisters of the Poor's religious freedom would be circumscribed if they were required to file a form to opt out of the Affordable Care Act's contraception requirement, a position that is weird law and even stranger theology.
Nevertheless, had Scott Walker, or Ted Cruz, or Carly Fiorina been placed in office by the Electoral College last autumn, Neil Gorsuch would have been who they nominated as well. However, the basic absurdity of this nomination-and, thus, yesterday's hearing-runs on two tracks.
Gorsuch has practically got the Heritage Foundation logo stamped on his forehead.
The first, of course, is that he shouldn't have been nominated at all, because there shouldn't have been a vacancy to fill. The Republican legislative majorities simply decided that the previous president should not have been allowed to fill the seat left open with the death of Antonin Scalia because the previous president was a Democratic politician. And even though the previous president went out of his way to nominate Merrick Garland, the perfectly respectable and qualified centrist chief justice of the D.C. Circuit, he might as well have nominated Noam Chomsky. That political calculation was made and that political calculation held. So when Gorsuch continually recited his fairy tale about non-political judges on Tuesday, it's a wonder that Garland didn't show up with a flamethrower.
The other train to fantasyland is the one carrying Gorsuch forward from this particular president*. The long resistance to the previous president's nominee's right to a hearing ended with Donald Trump in the White House. It's perfectly reasonable to speculate that the president* sub-contracted this selection to various wingnut welfare legal institutions, which makes Gorsuch's repeated refusals to talk about issues going forward an absurdity in and of itself.
The days of Earl Warren's coming back to haunt Dwight Eisenhower are long gone. (They took a turn toward the terminal in Bush v. Gore, and died entirely when John Roberts went before his own hearings and claimed to be an impartial umpire who would call balls and strikes.) Neil Gorsuch was handed to this president* because the people who have nurtured his entire career knew they had a safe one in the bag. And the president* put him up because the president* didn't know any better, and because he couldn't care less. It's also worthy of note that the president* in question is currently under investigation by the FBI.
But we are where we are, and the logic of absurdity applies, so we adhere to the reality that exists. In his morning testimony, Gorsuch presented himself as stunningly apolitical. Asked by Graham what he would have done had the president* asked him if he would overturn Roe v. Wade, Gorsuch got all puffed up and said, "I would have walked right out the door."
Yeah, I don't buy it, either. But we are where we are.
The logic of absurdity applies, so we adhere to the reality that exists.
The only time Gorsuch got a little shaky was early on, when he was asked about his time in the Justice Department under C-Plus Augustus. It was right around the time when the government got a little antsy about having violated about 10,000 covenants regarding torture, and when even Republicans were beginning to realize that Dick Cheney and his pet lawyers were a claque of bloodthirsty Saracens. There was a scramble to re-establish legal delicacy in the era of the waterboard and Enhanced Interrogation, and Gorsuch was right in the middle of it.
Something called the Detainee Treatment Act was passed in 2005. And Democratic Senator Dianne Feinstein quizzed Gorsuch on his role as a DOJ lawyer in the extended aftermath, intimating that Gorsuch had advised the administration on how to get around the provisions of the new law. She asked:
After the passage of the Detainee Treatment Act, you advocated President Bush issue a signing statement to accompany the law. In an e-mail you sent…you said the signing statement would, and I quote, these are your words, inoculate against the potential of having the administration criticized some time in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment. This statement clearly, and in a normal way that would be hard to dispute later, puts down a marker to the effect that McCain is best read as essentially codifying existing administrative policies, unquote. To be clear, the context was that, earlier in 2005, the Justice Department's Office of Legal Counsel had concluded that CIA interrogation tactics like waterboarding and sleep deprivation did not mean cruel treatment. Saying that Senator McCain's amendment actually codified them was not true. Doesn't it mean that, when you wrote this e-mail, you were condoning waterboarding?
Gorsuch was suddenly far less sure of himself, pleading that he was "one voice among a great many," and that he would have to look at the contemporaneous documents to be sure. I don't know about you, but, if I were an American lawyer, I'd remember if I'd greenlit torture. Later, when the committee came back from lunch, Gorsuch spectacularly asserted to Senator Richard Durbin that, because he had gobbled a sandwich at lunch, he couldn't recall the substance of the e-mail.
Remember, of course, that this is the nominee of a guy who promised "waterboarding and worse" as a national policy. Even by the laws of absurdity, a sandwich is not an alibi here.
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