Wednesday, March 22, 2017

Why the Gorsuch hearings are the most intolerable confirmation hearings ever

Yes, I mean that.

You may have picked up on this, but I'm kind of a misanthrope.  In particular, I really hate pretense, and no Supreme Court confirmation hearing has ever been more filled with pretense than the Gorsuch hearings.

Social science buzzword:  the "attitudinal" model.  This is the model of Supreme Court decision-making in which justices (we call Supreme Court judges "justices" rather than regular, old judges) are basically politicians with normal ideologies, but silly costumes.  They gussy up their liberalism and conservatism in obscuring language to pretend that they have "judicial philosophies" rather than conventional ideologies, but that's all bullshit according to the attitudinal model.

How's the empirical evidence on the attitudinal model?  Mixed.  It is hard to evaluate because most of the cases that the SCOTUS (great acronym, right?) deals with don't address issues of liberalism and conservatism.  Then there are the other complications.  If someone isn't a pure liberal or pure conservative, does that mean they aren't ideological at all?  So, when Scalia pissed off conservatives on criminal justice issues, like on 4th Amendment cases, is that because he wasn't an ideologue, or because he was just mostly conservative, but weird on some stuff like the 4th Amendment, flag-burning, etc.?  One of the key lessons from Philip Converse's 1964 piece, "The Nature of Belief Systems in Mass Publics" is that ideology is about constraint-- to hold an ideology is to be constrained to hold that ideology's opinions across a range of issues, but neither liberalism nor conservatism can be reduced to purely logical constraint.  Buchler's corollary:  if you hold exclusively liberal or exclusively conservative beliefs, you aren't thinking logically.  So, maybe justices are kind of ideological, but in weird-ish ways.

So, there's a debate about the "attitudinal" model.

But every Senate Republican believed that Scalia was basically a conservative, and that any nominee by a Republican president (even Trump) would basically be a conservative.  They are all attitudinalists.  That's why they refused to consider any Obama nominee, including Garland, even though Hatch had previously said that Garland could be confirmed.  They held the seat open for what they, at least, believed, would be a conservative.

Yet, the confirmation hearings for Gorsuch, like every confirmation hearing since Robert Bork, must at least follow the pretense that Gorsuch has no personal beliefs, or at least none that would influence his rulings.  And of course, the Republicans in the Senate pretend to believe this absolutely.

If they believed this, Gorsuch wouldn't be sitting there.

I hate pretense.  Whether you believe the attitudinal model or not, this wouldn't be happening unless the Senate Republicans believed the attitudinal model.

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