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"[I]f the Democrats, who called this hearing, hoped to blunt the momentum of the legal challenges by showing that the lawsuits had no merit, they failed in their objective."

Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)

Randy says:

If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges. 

Clearly, we've advanced beyond "Are you serious? Are you serious?"

Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."

Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing. 

He listened, he really, really listened!

Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.  

Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.

Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.

But that's all the more reason to do good theater.

Full post as published by Althouse on February 04, 2011 (boomark / email).