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Monday, September 03, 2018

Lawyering up in the Kavanaugh hearings

I have no intention of watching the national travesty of the Kavanaugh hearings, because nothing he says or does this week will make any difference to his confirmation. (I have in the past employed the common description of this as Kabuki, but I was told by a Japanese scholar that Kabuki, while stylized, is not empty or devoid of meaning, which is what the term is used to describe with respect to hearing).

I am, however, intrigued by this idea of hiring counsel to handle questioning, getting a lawyer with the skill and expertise to ask meaningful questions of witnesses and force them to give answers, rather than the word salad that passes for dialogue between Senators who lack the knowledge, training, and skill to perform the task and witnesses with no desire (or practical obligation) to answer. The historical examples the article provides (Watergate, Iran-Contra, Army-McCarthy) were investigatory hearings rather than confirmation hearings, so the need for cross examination and adverseness was clear. But the point remains--hired counsel would be much better able to perform the task. How much better might the exchange be if the Democrats hired Marty Lederman or Seth Waxman or Republicans in the future were to hire David Bernstein or Paul Clement to have a genuine constitutional dialogue?

Update: The author of the article is David A. Kaplan, author of the new book The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution and a guest on this week's First Mondays podcast. Kaplan argues that the Court should be less interventionist (he interviewed several Justices, who referred to him as "Felix"), including urging the argument that the public should understood SCOTUS decisions as resolving a case for past parties but not necessarily for future parties. I like the second part of that.

Posted by Howard Wasserman on September 3, 2018 at 02:54 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


but suppose that senators have as much interest as the nominee does -- none at all -- in deep questioning and thoughtful discussion? suppose that senators are interested almost entirely in soundbites and how their vote will play with the electorate? why hire outside counsel?

(fwiw, a few senators have been skilled questioners. Spectre and Feingold during the Alito , for example.)

Posted by: 1st anon | Sep 3, 2018 9:09:28 PM

I know how to solve the problems with the Supreme Court. Stay tuned for my article coming 2021

Posted by: YesterdayIKilledAMammoth | Sep 3, 2018 5:29:41 PM

Interesting , but with all due respect , both authors ( of the post , and the related article ) tend to forget or ignore , one simple fact :

And it is , that we deal here with a judge . A hell of a skillful judge . He has just served in circuit court , and heading to the supreme court . He is no less litigator , than any other skillful lawyer . If he would be pushed too much , if limits are pushed too much , he may teach them some “ respect ” or how to run such shows . That is not so simple as an apple .

However , one should not forget , that it is a confirmation hearing . This is not a disciplinary tribunal , nor a criminal process or nothing alike . Senators , need simply to be acquainted with the nominee , and that’s it . This is a parliament , not a court , trying to reveal or expose or exhaust any cost for revealing the truth . There is nothing to hide here . Such judge , has a clean record . Clean reputation probably . What is it ??

And anyway , not revealing views , just for such reason , for (I quote the related article , on Gorsuch ) :

“ Any comments on prior cases would compromise his impartiality on future analogous appeals ”

Can be interpreted also , as real desire , to exercise clean and concrete discretion or appearance of such . For if the judge , in advance , is “ affiliated ” and he knows it , and yet , insist upon his impartiality ,this is good !! He is sticking to the right model , to the right norm requested from professional judge . At least , he has decent appearance , or shame even , not to publicly admit that he is biased . This is good . In a way or other , a judge would be or always be affiliated . So , at least honorably so .


Posted by: El roam | Sep 3, 2018 5:15:52 PM

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