Losing One's Mind During Confirmation Hearings - Above the LawAbove the Law - Above the Law

Twenty years ago, President George W. Bush nominated Jeff Sutton to the Sixth Circuit. Sutton was, at the time, young, and he’s still very smart, so liberals feared that he might someday be a nominee to the U.S. Supreme Court. Confirmation for the circuit court presented the opportunity to rough him up and forestall that possibility. Liberals had to find a basis to oppose Sutton’s nomination.

When Sutton was in private practice, he had been retained to argue several cases in the Supreme Court.

What’s the reaction of a lawyer in private practice to being retained to argue a case in the Supreme Court? After you put away the champagne, you ask what the case is about.

Notice what’s missing from that description: Any concern about what position you’re being asked to advocate. If the Supreme Court granted certiorari in a case, then the issue presented is a close one; there are plausible arguments on both sides. Who cares what the issue is? Tee it up; argue it; add it to your online bio.

The question presented in Sutton’s case was whether state employees could bring actions for damages under the Americans with Disabilities Act. State employees could certainly bring actions for injunctive relief under the ADA; the question was whether there was a damages remedy. Sutton convinced the Supreme Court — by a 5-4 vote — that his position was correct. He won. His position was, according to a majority of the Supreme Court, correct on the law.

What happened at his confirmation hearing? Liberals screamed: “Sutton hates disabled people!”

Read that again: “Sutton hates disabled people!”

Are you insane? Nobody hates disabled people. It’s just not possible.

But senators and, I guess, the public, take leave of their senses when they oppose judicial nominees for ideological reasons.

I flashed back to Sutton’s experience, 20 years ago, when I saw snippets of Ketanji Brown Jackson’s confirmation hearing. The only things that had changed were the issue and the side that was opposing the nomination. The issue was now not the rights of the disabled, but child pornography, and the Republicans, instead of the Democrats, opposed the nomination.

At Jackson’s confirmation hearing, conservatives screamed: “Jackson likes child pornographers!

Read that again: “Jackson likes child pornographers!”

Are you insane? Nobody likes child pornographers. It’s just not possible.

I bet that child pornographers don’t like child pornographers.

I’m not surprised that senators are loathsome during confirmation hearings. And I guess I’m not surprised that some percentage of the American public believes this nonsense.

But wouldn’t you expect the vast majority of Americans to hold onto their senses during confirmation hearings?

When senators speak words that just can’t be true, why does anyone believe them?

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

source: https://abovethelaw.com/2022/04/losing-ones-mind-during-confirmation-hearings/

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