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Confirmation Hearings as a Window into Political Pathologies

Writing footnotes to a law review article can be a tedious business and I sometimes relieve the boredom by listening to background music or information.  Currently, that background consists of broadcasts of the confirmation hearings of President’s nominees. I have found them quite enlightening although not in the way that our politicians would like.

  1. Some Democratic prospects for 2020 are still caught up in the blinders that doomed Clinton’s campaign this year. Senator Kamala Harris used her time to ask the nominee for the Director of CIA about his willingness to follow LGTB friendly policies for employees at the agency. Senator Kirsten Gillibrand devoted her questioning of General Jim Mattis to making sure that the military would open all its units to women. This kind of focus on gender and identity helped Clinton lose votes from citizens for whom they were not priorities compared to traditional issues of the economy and national security.
  2. Many Questions are for Interest Groups, not for the Public. The hearing for Betsy DeVos to be Secretary of Education made this clear. Many, if not most, of the questions by Democrats would have been hard for an ordinary citizen to follow, but they laid down a marker for groups. Another indication that the questions were not intended for the public was that they were often delivered preemptively, sometimes in staccato fashion.  Most ordinary citizens would have found many Senators’ treatment of the nominee quite rude. And the Senators surely know this. In fact, Senator Tim Kaine, who was widely criticized for his overbearing manner in the Vice-Presidential debate, adopted much the same tone in the hearing. But coming across as harsh has the advantage of making Senators appear as champions of the interests of the groups that support them and that will be watching. Thus even hearings underscore the reality that the people are not present for much of politics and interest groups dominate.
  3. Procedural disputes are largely partisan.  For instance  at the hearing for the nomination of DeVos both sides cited precedent for how many rounds of questions they should be given. But there were no written rules on the issue and the scope of the precedent to which they appealed was quite unclear. But Senators from each party were implacably confident that precedents were in their favor. These squabbles show how important are precise written rules of procedure and how much better a non-partisan judiciary does in applying them.
  4. The Unusual Star In debates most members just reiterate dreary talking points, even if a colleague has made the same point a moment before.  In the House Armed Service Committee’s hearing on the waiver for General Mattis to be Secretary of Defense, for instance, one Democratic member after another said that the Trump’s administration decision to block him from appearing at the hearing forced them to vote no. One Republican after another said that only a bipartisan vote in favor of the waiver would send the right message to the troops. But in the middle of this rhetorical desert, Congressman Steve Russell of Nebraska challenged the premises of the law from which the waiver was sought in a sprightly and informative speech. There he argued that the Constitution did not require any cooling off period before a general could serve in government, and then provided a lively tour of American history of the many ex-generals who soon served either as President and as Secretary of War, beginning of course with George Washington and his own secretary of War, Henry Knox.  Congressman Russell is a freshman. May he never imitate his elders!
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