On Wednesday morning, the Senate Judiciary Committee met for the confirmation hearings of another spate of Donald Trump’s judicial nominees, in an activity now characterized principally as an exercise in not talking about things. Acting committee chairman Sen. Ben Sasse also very nearly used it as a new opportunity for the ever more popular activity of silencing women in the Senate, another hot committee trend under GOP rule.
The list of things not to be discussed for potential lifetime-appointed judges ranges from everything they ever wrote, to any case they ever worked on, and also anything they might believe. Still on the table? Sports and family.
Nebraska’s Sasse, the future of American democracy, used the hearing as a chance to talk about civics—which he loves—and sports—which he loves even more. (“Football!” “Auburn!” “Go Huskers!” “We’ll talk about the LSU scores later!”)
One of the nominees in question—Steve Grasz, former chief deputy attorney general of Nebraska—has been tapped for a seat on the 8th U.S. Circuit Court of Appeals. He is also one of only two nominees of the 58 Donald Trump has put forth who has been rated “unqualified” by the American Bar Association for his temperament (“gratuitously rude”) and after 200 interviewees offered doubts about his ability “to separate his role as an advocate from that of a judge.”
The previous time anyone was rated unqualified by the ABA was in 2006 and that nomination was withdrawn. But it’s 2017, so now we confirm homophobic bloggers and blame the ABA and it’s leadership (by name) for being partisan.
In Trump law world, jurists are assumed to always just be calling balls and strikes. They do that by becoming magical creatures without memory or volition when they put robes on their bodies. Sasse scolded Sen. Sheldon Whitehouse, D-R.I., for even suggesting that judging might be more than the mechanical application of “facts” to “law.” Whitehouse’s discussion of the thousands of small political decisions judges make every day was, Sasse warned, “opening a dangerous door.”
We are also not allowed to consider how a decadeslong career of partisan political advocacy such as Grasz’s might shape judicial thinking, or whether advocacy for religiously based objections to marriage equality, civil rights for gay people, and abortion is constitutionally problematic in a world where precedents matter. Sen. Orrin Hatch suggested Democrats’ misgivings about Grasz’s advocacy for the Nebraska Family Alliance was all about smearing a “bad organization.”
We are not allowed to talk about Grasz’s academic writings either. Especially not those referring to the decisions in Roe v. Wade and Casey as precedent that lower courts need not apply, or his view that courts “should have construed the 14th Amendment as granting a ‘partially born’ fetus right to life that overruled a mother’s right to choose.” This line, too, is deemed off limits for conversation, said Sen. John Kennedy because it represents liberals attacking a man simply “because you’re pro life.”
For backdrop, at a House Judiciary Committee hearing on Wednesday morning about a proposed “heartbeat” abortion ban, Rep. Steve King, R-Iowa, was actually quite open about the fact that being an explicitly “pro life” judge is something that should be sought after:
It is important that Congress passes such a strong pro-life bill now because President Trump will hopefully appoint one or two more justices to the Supreme Court, making this a profound moment in the pro-life movement. President Trump is actively changing the makeup of our judicial system with strong, conservative nominees who would hear arguments on this bill while it's being challenged on the way to the Supreme Court.
Now perhaps because Senate Democrats were not allowed to probe the nominee’s lengthy political advocacy career, his openly stated objections to current abortion doctrine, his support for allowing dissenters to opt out of anti-discrimination laws, and his stated opposition to John Roberts’ vote in the Affordable Care Act cases, it made perfect sense when Sasse attempted to end the first round of questioning without even recognizing Sen. Mazie Hirono, the only female senator in the hearing room for that round of questions. Nevertheless, she persisted.
As Hirono prepared to start her questions, Sasse was speaking over her to announce the beginning of the second round. Hirono quite literally had to stop him by gritting out the words, “Excuse me. I haven’t had my first round yet.”
Sasse had the decency to look embarrassed and blamed his notes for the fact that he didn’t see her. (Hirono was at the table a few chairs down from him). Her deadpan response to his apology said it all: “Here I am.” This made for a perfect capstone to the morning’s questions. The new Senate rule seems to be that if you’re a Democratic man challenging a Trump nominee who has been rated unqualified, you can ask questions but get no answer. And if you’re a Democratic woman, even if you’re in the room, you were never there at all.