Here is the full exchange. Do watch it all:
I could justly call this a case of res ipsa loquitur, requiring no further explication, but let’s be clear about what was going on.
Senator Hirono stated that her objection to the doctrine of Constitutional originalism was not based on law or theory, but on the fact that cases like Roe v. Wade, which made abortion a right, and Obergefell v. Hodges, which legalized same sex marriage, would not have been decided as they were had the Supreme Court majority used an originalism standard. That is, obviously, a purely consequentialist argument: if the results of applying a principle do not yield what she favors, then she does not believe the principle should be applied. It is an “ends justifies the means” position, and that is antithetical to the rule of law, as we have discussed on Ethics Alarms often. If the law is enforced by judges according to a floating standard whereby a principle is valid when a desirable result will arise from applying it, and invalid when an authority prefers a different result, then the law has no integrity, and the system becomes arbitrary and chaotic.
Senator Cruz, after his questioning of the Biden judicial nominee who tried to dance his way through Cruz’s implications that he was not consistent in his judicial philosophy, then referenced Sen. Hirono’s unambiguous explanation about why she opposed originalism: decisions she likes would have come out the other way. She responded by accusing Cruz of “mansplaining” and mischaracterizing what she said. When Cruz reasonably tried to ask exactly how he had mischaracterized her statement, the Democrats furiously attempted to block his response. When that failed, and Cruz asked directly whether she had said what she said, Hirono babbled incoherently, finally said “No.”
1. The Ethics Dunces here are the voters of Hawaii, who elected the spectacularly dim-witted and embarrassing Hirono to the U.S. Senate. By doing so they inflicted a virulent human virus carrying partisan extremism, incompetence and ethical confusion into the Legislative branch, surely not the only one, but almost certainly the worst.
2. Judges and elected officials on both sides of the partisan divide apply principles selectively to reach their desired results. Hirono was just frank about it. She did not have the wit or honesty, however, to stand by her own words.
3. The “mansplaining” tactic Hirono adopts is pure ad hominem and sexist to boot, a way to use a personal slur to avoid answering a legitimate question.
4. The frantic efforts of the Democrats to protect the Hawaii Senator from the consequences of her own carelessness demonstrates how party loyalty distorts the legislative process.
5. Hirono lied outright by denying that Cruz’s characterization of what she said was correct. Or she didn’t understand: with this Senator, Hanlon’s Razor is always in play.