News Sips 3/20: Gorsuch Hearings, Comey at the Capitol, POTUS to Kentucky, and Hogan Goes Green

Here are the four things you need to know before your coffee gets cold, the First Day of Spring, March 20, 2017 edition:

 

Gorsuch Hearings

The President’s Supreme Court nominee, Neil Gorsuch, will appear for his first confirmation hearing today before the Senate Judiciary Committee. At the outset, let’s remember that, unless something strange comes to light in the hearings or in an investigation, Judge Gorsuch will be confirmed to take the seat that has been vacant since the death of Antonin Scalia last February. Senators still have the power to filibuster Supreme Court nominees, but it remains to be seen if that option will really be taken. If it is, Republicans, led by Mitch McConnell, are poised to eliminate the filibuster of Supreme Court nominees (like former Majority Leader, Democrat Harry Reid, did for all other confirmations). There is very little doubt that this will happen, and Judge Gorsuch will be confirmed.

Without regard to whether Democrats decide to try to stall Judge Gorsuch’s confirmation, you can expect grandstanding of the highest variety coming from Senators on both sides of the aisle. They know that the cameras are on them, so there will be anti/pro-Trump rhetoric and questions from all over the political spectrum. Of course, Judge Gorsuch is a highly-qualified individual who has, according to bipartisan sources, one of the best legal minds in the country. However, this will certainly not stop political attacks against him during the proceedings today.

The biggest “litmus test” questions will come about abortion, and the principle of stare decisis. Generally, nominees will say something to the effect of “I stand for the idea that past decisions of the Court should not be disturbed and I will not comment on issues that may come before me as a Justice on the Supreme Court.” Expect to hear this kind of answer a lot from Judge Gorsuch. The reason really isn’t that he’s attempting to evade a question, rather, we want to believe (and in a lot of cases, it’s actually true) that our Judges are above politics. Sure, there are the high-profile cases where a slim majority decides a big case on ideological lines, however, the vast majority of the Supreme Court’s decisions are either unanimous or lopsided. Even the much-discussed “5-4” decisions don’t always break down on “party lines.”

Republicans want to make sure that Judge Gorsuch isn’t going to change his ideological stripes once he gets on the Court like some Republican nominees have done in the past. While no one can predict the future, it looks fairly certain that Judge Gorsuch’s judicial philosophy is strongly in favor of a limited reading of Federal power and a preservation of individual liberty. The chances of him switching over to the left on the Court seem remote.

Democrats want to get ammunition to win races in 2018. Opposing Judge Gorsuch is, for them, opposing Donald Trump. If they’re able to get a “good reason” to vote no on Gorsuch, they feel like they can be in a better position for defending nearly two-dozen Senate seats next Fall.

It’s best not to pre-judge a judicial confirmation hearing. However, from what we’ve seen already from Judge Gorsuch, we’d anticipate a thoughtful, reasonable judge and a lot of grandstanding politicians.

 

Comey on Capitol Hill

FBI Director James Comey will be on Capitol Hill today to testify before the House Intelligence Committee. The Committee has summoned Comey to appear along with the Director of the National Security Agency in order to answer questions about both Russian interference in the lead-up to the Presidential Election last year as well as accusations of domestic surveillance against then-candidate Trump by the previous Administration. Comey has been an outspoken critic of insinuations that the previous Administration was breaking the law and surveilling the Trump Campaign.

It’s worth a brief tangent here to wonder, perhaps idly, about just how political our intelligence community is getting these days. Perhaps it’s always been this way. Certainly J. Edgar Hoover was a showman and delighted in his investigations being known by some members of the public. However, given Comey’s (and others, including former DNI Clapper) continuous presence in the press, it’s a wonder that anything can remain secret at all. Sure, there’s an expectation in a free society that clandestine services not exceed their law enforcement mandate (we’re looking at you, NSA and FISA courts), but most reasonable people are willing to give some latitude to leaders of these divisions to keep certain things secret. Perhaps it would be better if America’s clandestine services, regardless of the stories in the press, just didn’t speak to reporters and only testified to Congress behind closed doors. Maybe this would reduce the overall perception of the political nature of law enforcement and would allow agencies to help keep America safe without having to prepare a statement to the press.

That tangent aside, it’s likely that Mr. Comey will deny any existence of a wiretap on Donald Trump or his headquarters. It’s best not to get too-far out in front of news stories (lest you look foolish when you call it wrong), but, given Mr. Comey’s public comments with respect to improprieties committed by the FBI, including wiretapping, as alleged by Mr. Trump, there will probably be a strong denial from the Director. Beyond this, there will definitely be discussions about Russia and the politicization of the FBI. Lawmakers know that their questions are going to get picked-up for the nightly news, so you should definitely expect some grandstanding as well.

 

POTUS to Kentucky

The President will be travelling to Louisville, Kentucky today for a “Make American Great Again Rally.” Donald Trump won Kentucky with 62.5% of the vote, so some folks might be confused as to why he’s making the trip down to friendly territory rather than to states with vulnerable Democrats in the 2018 midterm elections. Maybe he just loves Kentucky. However, if we’re being a bit cynical, his real focus is on Kentucky’s junior senator, and on-again-off-again thorn-in-the-side, Rand Paul.

Senator Paul and Donald Trump traded barbs on the campaign trail, at least during Senator Paul’s short-lived run. However, since Mr. Trump was elected, Senator Paul has committed to finding areas where the moderate Trump and the libertarian Paul can find common ground. There’s a stumbling block to this cooperation, unfortunately: healthcare.

Senator Paul, an eye-surgeon by trade, has been working with the conservative House Freedom Caucus to oppose the plan put forward by Republican leadership to fix the crumbling Affordable Care Act (Obamacare). Dr. Paul’s rationale is simple: Republicans ran on repealing and replacing and he doesn’t see the proposed plan as fulfilling that promise. Rather, to Senator Paul, the Republican plan is “Obamacare-lite” that doesn’t get rid of the entitlement, but rather just cements it as part of the Federal bureaucracy.

Senator Paul’s libertarian philosophy has drawn him into conflict with the hawkish, big-government members of the Republican establishment in the Senate. Though he usually votes with Republicans, the fact that the Republicans have a razor-thin majority in the Senate means that Senator Paul’s opposition to the bill currently being considered by the House means that the measure is in trouble.

If there’s anything we can be confident about, it’s that the President is looking to make a great deal on healthcare. It may be cynical to say that he doesn’t really have a guiding principle on the manner of reforming the law, but he does see it as a necessary first step in his legislative agenda. He was given a bill by Paul Ryan, so, in Trump’s view, that’s the starting point of the negotiation. The Ryan Plan has garnered big pushback from conservative activists, libertarians like Paul, but also conservatives in both the House and Senate. As an opening salvo, the Ryan Plan has fallen flat. However, now it’s up to the President to do some heavy-lifting on behalf of the plan and drag it across the finish line. Hence his visit to Kentucky. This is a not-so-subtle reminder that the President can draw huge crowds and that Senators like Rand Paul need to come to the table to get a plan through Congress.

In fairness to Senator Paul, he and the House Freedom Caucus rolled out their own plan that is far-more in-keeping with the policy proposals that Republicans had been running on for the past eight years. It remains to be seen if the President can draw the factions together for a compromise.

 

Hogan Goes Green

Friday afternoon, Maryland Governor Larry Hogan came out in favor of banning hydraulic fracturing (fracking) in Maryland. The Governor, who had stayed generally silent about the issue, made the announcement that caught both supporters and opponents of the ban off-guard. However, given the fact that the Governor has presided over significant investments in Maryland’s environment as well as dramatic improvements in the health of the Chesapeake Bay, the narrative that the Governor was some kind of anti-environmental industrialist was just never accurate.

The announcement was met with some consternation from Republicans from Western Maryland who saw the action as being a betrayal of private assurances that natural gas production may start soon in Maryland’s westernmost counties. It’s important to note, however, that, given the existing moratorium and Maryland’s strict rules and regulations, the possibility of fracking being a game-changer for some of the poor rural communities in Western Maryland really never made that much sense. Sure, natural gas exploration would bring some jobs and revenue, but the cost of doing that kind of business in Maryland just wouldn’t be nearly as good as in other states where existing restrictions are far less than those in Maryland.

Put another way, fracking in Maryland wasn’t going to happen in the way that advocates wanted it to, and there was a chance for the Governor to score a big win and push his bipartisan messaging to the more-left-leaning parts of the State. Let’s be clear that, of course, politics plays a factor in decision-making. But, that shouldn’t surprise anyone. The fact that the Democrats in Annapolis were pushing a fracking ban was to show that they could override the Governor’s veto and make him look like an anti-environmentalist going into the 2018 elections. Moreover, even if this whole saga would have unfolded, and somehow, Democrats would not have had the votes to override the veto, any appreciable gains from natural gas extraction wouldn’t have made a discernable impact on the Western Maryland economy for years. So, sure, perhaps there was politics at play in the decision, but they make rational, competent sense. Moreover, when Marylanders are asked next year to put their faith in Governor Hogan for a second term, they will realize that a ban on fracking is insignificant next to all of the good the Governor has done to strengthen Maryland’s economy and correct the financial course of the State.

 

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Of course, there are more things going on in the world, but these should be enough to get your day started.

 

Matt McDaniel

Attorney and Political Commentator

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