Those who tuned into C-SPAN today for hot-and-heavy questioning of President Donald Trump’s Supreme Court nominee were sorely disappointed. The first day isn’t actually about the nominee, but just a chance for senators on the Judiciary Committee to make opening statements. Accordingly, we learned very little about Judge Neil Gorsuch—he made an opening statement too, confirming everything we already knew about him as a humble jurist and western family man—and some about the Democrats’ approach to this confirmation process.
Actually, there was nothing new there either. There was no magical coalescence around certain deadly needles found in the haystack of 2,700 Gorsuch opinions. Just the tired old issues we saw the day after the nomination announcement on January 31. First, this was a #StolenSeat, so no Republican nominee will be confirmed until Merrick Garland is returned from exile. This issue was of course litigated at the election, and the voters decided that they’d rather have Trump filling the Scalia vacancy. So it’s unclear who this argument is for, other than the arch-blue base.
Second, a handful of carefully cherry-picked cases show results that don’t make Gorsuch look sympathetic to the “little guy.” The leading contenders for this strategy are the “frozen trucker” case, the “cancer survivor” case, and the “taser-to-the-head” case. Indeed, Senator Mazie Hirono (D-HI) accused Gorsuch of being too “fixated on the plain meaning” of a statute. Well, then.
These hearings are unlikely to change a single vote on anything (filibuster or nomination).
Oh, and then there’s an addendum strategy. When do you think Trump stopped beating his wife? Particularly on display from Senator Richard Blumenthal (D-CT)—who leaked Gorsuch’s private comment about being dismayed at attacks on the judiciary—we’ll see much more of this as senators try to pin some of the president’s controversial pronouncements, tweets, and policies onto the elegant nominee.
Still, the results-oriented foofaraw was really quite astonishing. Ranking Member Dianne Feinstein (D-CA) both botched the definition of originalism and then claimed that this rather standard legal theory would lead to all sorts of bad things. (It was sort of like Ted Kennedy’s “Robert Bork’s America” speech, except lacking in imagination.) Sen. Sheldon Whitehouse—who once asked me at a hearing why I thought corporations had more rights than amputee vets—railed against the corporations that have apparently bought all Republican-appointed judges (and Justice Ruth Bader Ginsburg?). And on and on, as if judges were supposed to put a thumb on scale of certain preferred parties—after checking the latest hierarchy of intersectionality of course—rather than doing their best to apply the law to the facts in a neutral manner.
The Republican senators were less memorable—perhaps because I didn’t have to take Bacardi shots for “super-precedent,” “Garland,” “Citizens United,” and the rest—but generally set a good tone. I alas was at lunch when Senators Ted Cruz (R-TX) and Mike Lee (R-UT), both former Supreme Court clerks, gave their remarks, but Senator Ben Sasse (R-NE) gave a characteristically thorough explication of judges as ideally indistinguishable “black robes.” The Twitterverse has “black rober” as the early favorite for the theme of the hearings.
Of course, Tuesday the real fun begins, with each of the 20 senators taking half an hour for questioning Gorsuch. If they need any help on what to ask, here are some good suggestions from George Will, Ramesh Ponnuru, Randy Barnett/Josh Blackman, and yours truly.
But really, unless something really weird happens, this is so much about everything except the nominee. These hearings are unlikely to change a single vote on anything (filibuster or nomination). I’m just hoping they elucidate some important areas of constitutional interpretation and legal process despite (because of?) that dynamic.Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute.
A. Trevor Thrall
In a successful test earlier this month, North Korea fired four missiles into the Sea of Japan, heightening concerns about its nuclear weapons program. As Victor Cha, a former Bush administration adviser, recently said of the missile tests, “This is now a military testing program to acquire a proven capability.”
The tests continue to raise the stakes for President Trump, who indicated before he took office that North Korea acquiring long-range, nuclear-armed ballistic missiles is something that “won’t happen.” Trump’s blunt message and the urgency of the international response are understandable. But although its nuclear weapons present a threat today to its neighbors, and likely down the road to the United States homeland, North Korea also provides two important lessons that the United States could use to reorient its foreign policy in a more useful direction.
North Korea’s nuclear program is no longer a problem that can be solved at a reasonable cost.
The first lesson is that neither the United States, nor the international community, can solve every problem that occurs in the world. Many problems do have solutions, and there is every reason to try to find reasonable solutions to pressing challenges — especially those involving peace and security — before acknowledging that they cannot be resolved. But some problems simply do not have solutions, or at least none that would come at a reasonable price.
North Korea’s nuclear program appears to be one of the latter problems. The United States and the international community tried hard throughout the 1990s to keep North Korea from pursuing nuclear weapons, but eventually those efforts failed. More than 20 years later, it is clear that North Korea’s nuclear weapons are here to stay.
Not only is there little reason to expect diplomatic solutions to work today where they failed before, but any military option has long since passed beyond the realm of thinkable. One does not attack nuclear-armed nations; the risk of catastrophe is simply too great.
The obvious implication of this first lesson is that at this point, the United States needs to stop trying to roll back North Korea’s nuclear program.
More fundamentally, the United States needs to consider which of the many foreign policy problems it has identified can be solved, and which cannot.
The second lesson from North Korea is that the U.S. needs to think much harder about the limits of military intervention and the unintended consequences of maintaining a forward military presence in troubled spots around the world.
North Korea’s famously paranoid style often makes Pyongyang seem unhinged, but what nation wouldn’t be worried with tens of thousands of well-armed American troops staring across the demilitarized zone?
North Korea might have developed nuclear weapons even if the U.S. had not stationed troops in South Korea, but Americans should not be blind to the proliferation incentives created by the sustained presence of U.S. military forces since the Korean War. And today the only reason a North Korean nuclear program presents any real threat to the United States is because of the continued U.S. presence in South Korea.
North Korea’s nuclear program is no longer a problem that can be solved at a reasonable cost. Though nobody is happy about this, trying too hard to roll back this fact carries a real chance of making things worse.Trevor Thrall is a senior fellow at the Cato Institute and associate professor at the Schar School of Policy and Government at George Mason University.