Why do the members of the Senate Judiciary Committee think they’re qualified to cross-examine a Supreme Court nominee effectively?
They aren’t—they just can’t bear to give up airtime. But if they’re honest enough to admit it, they have an alternative. Even though they’re in the minority, they’re fully allowed to hire their own counsel. They ought to retain a professional to do the job.
When Brett Kavanaugh takes center stage this week in his confirmation hearings on Capitol Hill, many Republican senators won’t bother to ask anything tough. A year ago, when Neil Gorsuch—President Donald Trump’s first Supreme Court appointment—was before them, they discussed such pap as mutton busting, Gorsuch’s pet goat Nibbles, and (thank you, Senator Ben Sasse) “how in the world is Gorsuch able to go so many hours at a time without peeing.” (The nominee of course declined to answer the last.) They would have voted to confirm Gorsuch if he’d been comatose at the hearings—and the same will likely be true for Kavanaugh. Except for the pleasure of hearing their own voices, Republicans will be content to ask nothing at all. So the last thing they want is an accomplished interrogator.
Democrats have no such excuse, and even though they’re in the minority they’re fully allowed to hire their own counsel—one lawyer for all of them. Most Senate Democrats will oppose Kavanaugh because they legitimately suppose he will drive the Court further to the right. A few would vote down any nominee, in retaliation for how the GOP in 2016 obstructed Merrick Garland, President Barack Obama’s pick to fill the seat formerly held by Justice Antonin Scalia. If the past is a guide, though, the senators will be inept at establishing a principled case against Kavanaugh. They haven’t mastered the art of eliciting information from an uncooperative witness or so exposing his reticence that it becomes embarrassing.
Exhibit A is Gorsuch’s response to Senator Dianne Feinstein’s 113-word question about the importance of precedent in the context of Roe v. Wade, the 1973 ruling that created a constitutional right to abortion: “Part of the value of precedent—it has lots of value—it has value, in and of itself, because it is our history, and our history has value intrinsically,” he said. Huh?
A skilled litigator might have explored such circular nonsense. Not Feinstein. She wanted to know about Roe as a “super precedent.”
“It has been reaffirmed many times—I can say that,” Gorsuch replied.
“Yes,” Feinstein said.
“Yes,” Gorsuch said.
“Yes, dozens.” And then Feinstein—apparently oblivious to the drivel she’d just been given—kept looking at her notes and proceeded to her next question, this one about a torture memo during the administration of George W. Bush.
Gorsuch also refused to talk about the constitutional correctness of Griswold v. Connecticut, the 1965 decision that upheld the right of married couples to use contraceptives. He couldn’t even bring himself to offer a view on whether he agreed with the justices’ unanimous 1954 ruling in Brown v. Board of Education. Nonetheless, over the course of two days of testimony, he told senators 36 times he really “appreciated” the opportunity “to answer questions” and “to have a conversation with you.”
The nominee kept replaying the old saw that any comments on prior cases would compromise his impartiality on future analogous appeals. But that’s patent nonsense. You can analyze the persuasiveness of a justice’s opinion without committing to a future vote. Your analysis may differ from your personal politics. I, for example, think Roe v. Wade was a lousy legal ruling, even though I favor broadly liberal abortion policy. Moreover, if previously expressed viewpoints do disqualify a justice from sitting in a future case, how is it that actual prior rulings aren’t disqualifying? Justice Clarence Thomas, for example, in a dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, called for Roe v. Wade to be overturned. Does that mean he should forever be barred from hearing an abortion case?
Once upon a time, Congress ceded the questioning at epic, televised hearings to adept questioners. In 1973, Sam Dash was enlisted from the Georgetown University law faculty to be chief counsel for the Senate Watergate Committee. He was a model cross-examiner: methodical, measured, and meticulous, scripting out the proceeding, as he recalled it, “like a detective story.” It was Dash who drew out Alexander Butterfield, a presidential aide, to acknowledge that President Richard Nixon knew about the audio-taping system in the Oval Office.
Part of Dash’s repertoire was an embrace of technology. He and his aides summarized every relevant document they could find—correspondence, government report, newspaper article—and put the summaries on a mainframe computer at the Library of Congress that was searchable by word. They had created a forebear to Google. When Dash was cross-examining former Attorney General John Mitchell, he kept getting “Well, I don’t remember” as an answer. So Dash, in real time, called the computer people, who found the evidence that Mitchell knew more. Within 10 minutes, they’d brought a printout to Dash in the hearing room.
“Show it to the witness,” Dash commanded.
“Oh, well, yes, yes, I do remember,” the witness admitted.
Fourteen years later, another attorney became the face of a Senate committee in the spotlight. At the time, Arthur Liman was the best trial lawyer in the nation. He took time off from his New York law firm to become the chief counsel to the committee investigating the Iran-Contra affair during the Reagan administration. His interrogation of Lieutenant Colonel Oliver North, a central figure in the arms scandal, was the signal moment of the hearings and helped to crystallize competing evaluations of North’s conduct. Some critics said Liman was too soft on the Marine, but nobody accused him of posing meandering questions or of a lack of effort. Consider the time that Liman engaged North on an important memo that somehow hadn’t been fully destroyed.
“Are you criticizing how well I did my shredding?” North asked.
“Colonel,” Liman said, “my eyesight suffered from reading what you left behind.”
“I deserved that one,” North replied.
Tall and gawky, Liman seemed to like playing the absentminded professor rather than the Midtown Manhattan shark. It was part of the theater. His hair was always unruly, with a wriggle of gray over his forehead. The Washington Post devoted a full article to describing it, quoting Nancy Reagan’s stylist, “His hair looks like a poodle stretched over a balloon.”
Perhaps the most successful lawyer at a celebrated congressional hearing was Joseph Welch during the Army-McCarthy investigation in 1954. Welch was a partner at an old-line Boston law firm, but would have nicely fit into a Dickens novel: elfin, bow tied, wry, and sly. While the Army, not the Senate, had brought him in, he still had a microphone and was given the chance to conduct questioning. It was Welch, not a senator, who delivered the unexpected coup de grâce to Joseph McCarthy. Responding to a McCarthy diatribe, in a subdued, mournful voice, Welch asked:
“Have you no sense of decency, sir? At long last, have you left no sense of decency?”
The gallery erupted in applause. Wiping away tears, he soon left the hearing room. (Otto Preminger knew acting talent when he saw it, recruiting Welch to play the trial judge in the film Anatomy of a Murder. Welch got rave reviews.)
Partisans on both sides of Supreme Court confirmation hearings ought to want thoughtful inquiry. That’s a good way to find out if presidential nominees will be thoughtful justices. The current system is a charade. Ideally, Republicans and Democrats each should seek out their own Perry Mason. In the current environment, the party in power never will, because it can’t possibly see far enough ahead to the day when it’s no longer the party in power. But the party out of power—these days, the Democrats—can lead the way.
Maybe better questioning of Brett Kavanaugh might get him to budge. If he doesn’t, it might move the needle on public opinion or shift a few Senate votes. But if nothing else, it would surely do a better job illuminating his views—or his refusal to disclose them—than what we get now.