Live blog of confirmation hearings, Day 3: Dems try to pin down Gorsuch on abortion, gay marriage
Neil Gorsuch gestures to make a point in the third day of Senate confirmation hearings. U.S. Capitol photo.
Democrats on the Senate Judiciary Committee on Wednesday sought clues from U.S. Supreme Court nominee Neil Gorsuch about how he would rule in cases involving abortion and same-sex marriage.
The Democrats pressed Gorsuch about the right to privacy, originalism and overruling precedent, all with the apparent aim of learning whether he would vote to overrule Roe v. Wade and Obergefell v. Hodges.
Sen. Dianne Feinstein, D-Calif., raised the gay-rights issue by referring to the late Justice Antonin Scalia, whom Gorsuch would replace on the court. She asked whether Gorsuch agreed with Scalia that originalism means there is no protection for gays or women because it wasn’t the understanding of those who drafted the 14th Amendment.
When it comes to equal protection of the law, Gorsuch said, it “matters not a whit” that the drafters of the 14th Amendment were sexists, because they were, or that they were racists, because they were. The meaning of the words matters, he said. And so does precedent, he said.
“It would be a mistake to contend that originalism turns on the secret intentions of the drafters,” Gorsuch said. “No one intends to return us to horse-and-buggy days.”
Sen. Richard Blumenthal, D-Conn., also sought information about how Gorsuch might rule when he posed a series of questions about precedent. He listed several groundbreaking decisions and asked Gorsuch for his views.
Gorsuch characterized two decisions as seminal: Brown v. Board of Education, which overturned the doctrine of separate but equal, and Loving v. Virginia, which invalidated bans on interracial marriage.
Gorsuch said Brown v. Board of Education had corrected a badly erroneous decision and vindicated the correct original meaning of the 14th Amendment. And it is one of the shining moments in constitutional history, he said.
Blumenthal asked Gorsuch about Lawrence v. Texas, which overturned a ban on sodomy. Did it overturn an incorrect decision? Blumenthal asked.
That is what the Supreme Court declared, Gorsuch replied.
Gorsuch was also more restrained in his discussion of Griswold v. Connecticut, which held that marital privacy extends to contraception. Gorsuch said the opinion is more than 50 years old and the reliance interests are strong. And he can’t imagine any state trying to pass a law in that area, he said.
Blumenthal pressed Gorsuch to say whether he believed the opinion is the right result. It is a precedent, Gorsuch said, and it deserves respect.
Blumenthal concluded that Gorsuch had been “very adroit” in answering many of his questions, but he said he had hoped Gorsuch would have been more forthcoming on whether he agreed with the results of many cases.
Doubts have been raised, Blumenthal said, because of statements by Donald Trump that he would choose someone who would overrule Roe v. Wade.
7:53 p.m. ET. The hearing adjourns for the evening. It will reconvene at 9:30 a.m. Eastern Time on Thursday.
7:52 p.m. ET. Sen. Charles Grassley, R-Iowa, said Gorsuch didn’t appear frustrated by persistent questions he couldn’t answer. But Grassley said he was himself frustrated.
Grassley said Gorsuch is to be commended for his strength in the process. Gorsuch’s humility shines through, in what he says and in his nonverbal demeanor, Grassley said.
7:39 p.m. ET. Sen. Mazie Hirono, D-Hawaii, said she will have to judge Gorsuch’s nomination based not on what he has said during the hearings, but on what he didn’t say.
“It remains to be seen if you will be a justice for all, or a justice for some,” she said.
7:11 p.m. ET. Sen. Richard Blumenthal, D-Conn., asked about the Heller decision that found the Second Amendment protects an individual right to own a gun.
Gorsuch said his recollection of the decision is that it protects the right to own guns in common use, subject to reasonable restrictions. And it is the job of a judge, he said, to apply the precedent of the U.S. Supreme Court.
Did he agree with the decision? Blumenthal asked. Gorsuch said both the majority and dissent were fine, thoughtful opinions.
Blumenthal said he thought Gorsuch has been “very adroit” in answering many of his questions, but he had hoped Gorsuch would have been more forthcoming on whether he agreed with the results of many cases.
“You’ve left doubt,” Blumenthal said, because of statements by Trump that he would choose someone who would overrule Roe v. Wade. Because of that, Blumenthal said, he had hoped Gorsuch would be more forthcoming about his views, particularly with regard to cases involving the right to privacy.
Gays and lesbians may be worried that Gorsuch would vote to overturn the Obergefell and Lawrence decisions, and Gorsuch had not allayed such concerns, Blumenthal said.
6:51 p.m. ET. Franken said Democrats are deeply concerned about rulings of the Roberts court. “This is about getting to court. About people getting to vote. About Americans losing faith in our democracy,” Franken said.
Franken said he agreed with Gorsuch that justices need to follow precedent, but he wants to hear from Gorsuch that he will consider the real-world consequences of his decisions.
“This is a job interview,” Franken said. “You are applying for a lifetime appointment to the highest court in the land.”
Gorsuch said that we are all in the ship, and we are going to hang together or hang separately. “Of course I care about this country, I feel deeply,” he said.
6:40 p.m. ET. Sen. Al Franken, D-Minn., referred to the Shelby County case striking down a formula of the Voting Rights Act that is used to determine which jurisdictions have to get advance clearance before making changes to voting practices.
Franken referred to Justice Antonin Scalia’s comments in oral arguments that, Franken said, questioned political motivations of those who voted for the law.
Gorsuch said justices pose hypotheticals in arguments, and he wasn’t going to condemn a man for arguments he hadn’t heard.
Gorsuch added that Scalia’s legacy will live on a lot longer than his.
6:20 p.m. ET. Sen. Amy Kobuchar, D-Minn., asked Gorsuch about antitrust law, a subject he teaches in law school. Gorsuch enthusiastically answered questions about a 2013 Supreme Court case, on his law school syllabus, about pay-for-delay pharmaceutical agreements. He also appeared animated as he referred to other cases.
Gorsuch then asked to speak, saying he wants to say something before too many people leave the hearing room, and while anyone is still watching the hearings.
Gorsuch thanked the senators. If the American people could see what he has seen in his dealings with the lawmakers over the last few months, he said, they would be much bigger believers in government.
6:05 p.m. ET. Sen. Sheldon Whitehouse, D-R.I., asked Gorsuch about an email he sent, while working in the Justice Department, about testimony before the Senate Judiciary Committee by Attorney General Alberto Gonzales.
Gorsuch’s email said Gonzales was doing a really nice job “and running circles around committee members.”
Whitehouse said he was troubled by the email because Gonzales’ testimony was later revealed to be incomplete and misleading. Gonzales was testifying about the terrorist surveillance program. At what point did Gorsuch realize the testimony was inaccurate? Whitehouse asked.
Gorsuch said had no independent recollection of the email. He had helped Gonzales prepare the testimony, in the capacity as a speechwriter, Gorsuch said. He did not recall having access to classified information about the program at the time.
5:53 p.m. ET. Sen. Dick Durbin, D-Ill., asked Gorsuch about pro bono work he has done and whether he has ever represented an unpopular or notorious client.
Gorsuch said “notorious” is in the eye of the beholder, but lots of his pro bono clients would be considered unpopular.
Durbin asked Gorsuch about a critical email he sent entitled, “Elite Law Firm Pro Bono Work for Terrorists.” The email referred to an article about people representing Guantanamo detainees.
Gorsuch said the email wasn’t his finest moment, and he was blowing off steam with a friend. He said he has admiration for lawyers who represented detainees, including his friend, former acting Solicitor General Neal Katyal.
5:44 p.m. ET. A third round of questioning by senators begins.
4:45 p.m. ET. Sen. John Kennedy, R-La., asked Gorsuch to walk him through how he would construe a statute.
You start, Gorsuch said, with the text of the statute. You try to apply the plain meaning to the people who will have to comply. If the words are clear, you stop, unless there is a constitutional difficulty.
Wouldn’t you want to take a look at the legislative history to make sure you are right? Kennedy asked.
There is no need when the meaning is plain, according to Supreme Court precedent, Gorsuch said.
Couldn’t a judge, looking at a statute, try to imagine the problems the lawmakers were trying to address? Kennedy asked.
Based on precedent, Gorsuch said, the interpretative exercise ends if the statute is clear.
If the statute is unclear, the court can go further, Gorsuch said. He added that he likes to take a look at “every scrap of information” put forth by parties, he said.
Is it OK to look at legislative history, as well as the problem lawmakers were trying to solve? Kennedy asked.
One concern about looking to the problem to be solved, Gorsuch said, is that it’s difficult to get into the head of the entire Congress.
4:11 p.m. ET. Sen. Mazie Hirono, D-Hawaii, said Gorsuch had painted a picture on Tuesday about the justice system that is straight out of a Norman Rockwell painting. “But of course, you and I both know politics and the courts are intertwined,” she said.
She pointed to a 2005 National Review article by Gorsuch in which he recognized that judges appointed by Republicans would have less sympathy for some kinds of plaintiffs. Should justice depend on who is in charge of nominating and confirming judges? Hirono asked.
Gorsuch said he doesn’t think that is true, and pointed to the number of unanimous decisions in his own court.
His article, Gorsuch said, stated that courts have to be open to civil rights claims. But his article, Gorsuch said, made the point that sometimes social issues aren’t best left to the courts.
The article was written before Gorsuch became a judge.
3:48 p.m. ET. Sen. Richard Blumenthal, D-Conn., returned to questions about precedent, the right to privacy and Brown v. Board of Education, which overturned the doctrine of separate but equal.
Gorsuch said Brown v. Board of Education is a seminal decision of the U.S. Supreme Court that corrected a badly erroneous decision and vindicated the correct original meaning of the 14th Amendment. And it is one of the shining moments in constitutional history, he said.
Do you agree with the result? Blumenthal asked. Why won’t you say so? he asked. Chief Justice John G. Roberts did that during his confirmation hearing, Blumenthal said.
“We’re on the same page” with the result in Brown v. Board of Education, Gorsuch said, referring to Roberts and himself.
What about Griswold v. Connecticut holding that marital privacy extends to contraception? Blumenthal asked. Gorsuch said the opinion is more than 50 years old, and the reliance interests are strong. And he can’t imagine any state trying to pass a law in that area, he said.
Blumenthal pressed Gorsuch to say whether he believed the opinion is the right result. “They are all precedents,” Gorsuch said. “They all deserve respect.”
But did he agree with the result? Blumenthal asked.
Gorsuch said he believed Blumenthal was splitting hairs, drawing disagreement from Blumenthal. “Words matter,” Blumenthal said.
“I don’t come at these issues fresh,” Gorsuch said. “It’s not whether I agree or disagree with any particular precedent. That would be an act of hubris.”
Blumenthal then asked about Loving v. Virginia invalidating bans on interracial marriage. Gorsuch called that case seminal, and said it also vindicates the meaning of the equal protection clause.
And Lawrence v. Texas overturning a ban on gay sodomy? Did it overturn an incorrect decision? Blumenthal asked.
That is what the Supreme Court declared, Gorsuch said.
3:13 p.m. ET. Sen. Christopher Coons, D-Del., says he was glad when Gorsuch agreed Tuesday that there is a right to privacy in the Constitution. But Coons said Gorsuch referred to older cases involving parenting in discussing that right. Did Gorsuch acknowledge that more recent cases involving contraception, abortion and gay marriage also involved a right to privacy? Coons asked.
Gorsuch said the new cases spring from the old cases, and they also rely on a right to privacy.
Answering a question by Coons, Gorsuch said the Casey decision reaffirming the right to abortion, and the Obergefell decision establishing a right to gay marriage are settled law.
Coons asserted that a passage in Gorsuch’s book on euthanasia said a portion of the Casey decision on the mystery of life was persuasive but nonbinding. Gorsuch said he’s not sure the book said exactly that; he believed he said that argument could be made.
Coons pressed Gorsuch on whether Casey and Obergefell could be overruled. Gorsuch mentioned the law of precedent, something he referred to in earlier testimony. Relevant considerations, he said then, include whether a body of law has built up around the precedent, the reliance interest, and the precedent’s “workability,” meaning that it is easy to apply.
Are there significant reliance issues in Obergefell? Coons asked. “I am sure there are,” Gorsuch replied.
2:36 p.m. ET. Sen. Ben Sasse, R-Neb., asked Gorsuch whether it was proper to cite international law
It’s not categorically improper, Gorsuch said, and it’s necessary in some contexts, such as choice of law issues. But as a general matter, Gorsuch said, he doesn’t doesn’t know why there is a need to look to the experience of other countries.
2:13 p.m. ET. Sen. Al Franken, D-Minn., turned to the topic of arbitration, covered in a New York Times series. Gorsuch said he read the articles after Franken had suggested he do so.
Franken said that forced arbitration clauses based in the fine print of contracts restrict access to justice. The clauses proliferate, he said, because of decisions by the U.S. Supreme Court under Chief Justice John G. Roberts Jr.
Franken asked for Gorsuch’s reaction to the series and whether he was shocked.
Gorsuch said the articles made him think of history. Arbitration was disfavored at common law. Then Congress passed the Federal Arbitration Act. If Congress thinks courts aren’t applying the law as it wishes, it can change it, he said.
Gorsuch said he is a big believer in jury trials, and he wants to make litigation cheaper, faster and more accessible. And he agreed with Franken that transparency is a virtue of jury trials.
But the Federal Arbitration Act looks to whether the parties agree to arbitrate, Gorsuch said. There are defenses that can be raised, such as unconscionability, though it’s not clear how such a challenge would fare, Gorsuch said. If he were a trial lawyer, he might ask Congress to change the law, Gorsuch said.
Franken says he has repeatedly introduced a bill to change the FAA, but it has not met with success.
1:44 p.m. ET. Klobuchar said Gorsuch appears to use “selective originalism,” sometimes relying on the opinions of non-originalist judges in his decisions. Gorsuch replied that happens because of the need to rely on precedent.
Klobuchar said her professor at the University of Chicago Law School, Judge Richard Posner, has said justices do ground their decisions in their own morality, and don’t just apply the facts to the law. Gorsuch said that hasn’t been his experience. “Maybe I’m just more optimistic,” he said.
“There’s room for disagreement; there’s not a single right answer in every case,” Gorsuch said. But that doesn’t mean judges aren’t trying to decide cases based on the legal materials, he said.
1:33 p.m. ET. Sen. Amy Klobuchar, D-Minn., referred to the U.S. Supreme Court decision on Wednesday in a case interpreting the Individuals with Disabilities Education Act, which requires an appropriate public education for students with disabilities. The decision unanimously rejected the standard used by Gorsuch in IDEA cases before his court, which required schools to provide educational benefits that were merely more than de minimis.
The Supreme Court said the standard used by the 10th Circuit was inadequate for students, the Washington Post reported here.
Gorsuch said the Supreme Court accepted the case because of a circuit split on the issue. The 10th Circuit standard wasn’t out of the mainstream, he said.
12:29 p.m. ET. Sen. Sheldon Whitehouse, D-R.I., asked a series of questions about political campaign spending and the Citizens United decision. He expressed concern that the current Supreme Court does not acknowledge the type of power that corporations wield in the political marketplace through campaign spending.
Gorsuch repeatedly referred to Buckley v. Valeo, and said it gives lawmakers the power to pass laws requiring disclosure. He also referred to limits when disclosure is used as a club, established in NAACP v. Alabama.
Whitehouse asked if Gorsuch would be willing to reconsider Citizens United.
Gorsuch said Whitehouse is apparently arguing that changed circumstances require the overruling of the decision. Gorsuch said he can’t make any promises. And he said he disliked Whitehouse’s characterization of the Supreme Court.
“I’m distressed to hear you think that judges of the Supreme Court [are] organs of a party. It distresses me,” Gorsuch said.
“It distresses me too,” Whitehouse said.
12:06 p.m. ET. Sen. John Cornyn, R-Texas, asked Gorsuch about his views on legislative history.
Gorsuch said a good judge entertains all arguments by all parties. But the law that governs is what Congress passes, Gorsuch said. “Everything else that is stitched around it is not law,” though it may have persuasive value, Gorsuch said.
Gorsuch said there are due process and fair notice considerations. We assume it is reasonable for people to be aware of all 5,000 federal criminal laws that have passed. Is it also reasonable to assume they are aware of all floor statements about the laws? Gorsuch asked. Is that due process?
11:51 a.m. ET. Durbin said Gorsuch had participated in 52 opinions on the Sixth Amendment right to effective counsel, and Gorsuch did not find a violation in any single case.
Do you believe that the Sixth Amendment right to counsel is fundamental? Durbin asked. Gorsuch replied that the Supreme Court had recognized it is in Gideon v. Wainwright.
Gorsuch discussed the Strickland standard for reversing convictions because of ineffective counsel. There must be both ineffective assistance and prejudice, Gorsuch said. Sometimes the first prong is met, but the second is not, Gorsuch said.
Durbin asked about a case in which the defendant—who ultimately face a life sentence—turned down a 10-year plea deal because of incompetence of counsel. Gorsuch wrote a dissent finding no ineffective assistance because the defendant nonetheless received a fair trial.
Durbin said the Supreme Court “clearly decided that you were wrong.”
Gorsuch said Durbin was “absolutely correct.”
11:44 a.m. ET. Sen. Dick Durbin, D-Ill., said Gorsuch had found against students with disabilities in eight out of 10 cases involving the Individuals with Disabilities Education Act.
Durbin noted that the U.S. Supreme Court ruled Wednesday in a “powerful” unanimous decision requiring school districts to provide more than minimal services for students with disabilities. The opinion rejected the standard used in Gorsuch’s 10th Circuit rulings, which created high hurdles for students with disabilities, Durbin said.
Gorsuch said the opinion was handed to him this morning as he was headed to the bathroom.
Gorsuch said he was bound by 10th Circuit precedent on the standard, and it didn’t mean he liked the result.
11:19 a.m. ET. Gorsuch spoke about his role as judge. It is his job, Gorsuch said, to respect the boundaries of the legislative branch and not legislate through the cloak of a judicial robe. Judges make very poor legislators, Gorsuch said.
Sometimes legislators make poor legislators, Hatch responded.
Gorsuch disagreed. “I know there is great pessimism about our government,” Gorsuch said. “I think this body still works.”
“For you to do your job,” Gorsuch said, “it’s important that I don’t do your job.”
11:15 a.m. ET. Gorsuch responded to a question by Hatch about his work in the Justice Department. He supervised civil lawsuits involving the United States as his client, and he held the role of advocate.
“As a judge, you put that aside,” he said. There is just one client—the law, Gorsuch said.
11:10 a.m. ET. Sen. Orrin Hatch, R-Utah, turned to the issue of Chevron deference.
Do you think your writings reflect a knee-jerk reaction against commonsense regulations? Hatch asked.
No, Gorsuch replied. Gorsuch went on to explain. He said that Section 706 of the Administrative Procedures Act says courts are expected to defer to factual findings of agencies. And we do, Gorsuch said.
But courts have created a doctrine that says, if there is any ambiguity in the law, the agency gets to make the decision about what the law means, Gorsuch said. And Gorsuch said he has questions about that and whether it is compatible with the plain language of Section 706.
If the law can change so easily without legislative action, where is the due process to the individual? Gorsuch asked. How is the individual supposed to figure out the law? And what about equal protection problems when an agency is allowed to pick and choose its targets? And what about the separation of powers? “I thought judges were supposed to say what the law is,” Gorsuch said.
10:54 a.m. ET. Leahy asked about the emoluments clause, which prohibits government officials from taking emoluments from foreign agents.
Gorsuch noted the clause “sat in a rather dusty corner for a long time” but it has received lots of attention recently. He also said it is the subject of ongoing litigation, restraining his ability to comment. Several prominent scholars have filed suit claiming payments by foreign powers to President Trump’s companies violate the clause.
10:50 a.m. ET. Leahy turned to President Trump’s travel ban. Does any president have to comply with a court order? Leahy asked.
“That’s the rule of law in this country,” Gorsuch said. Presidents say things and then judges decide, and that’s the way the system works, Gorsuch said.
“You better believe I expect judicial decrees to be obeyed,” Gorsuch said.
10:46 a.m. ET. Sen. Patrick Leahy, D-Vt., asked Gorsuch whether he would recuse himself in cases involving Philip Anschutz, a billionaire and former client of Gorsuch’s who had continuing ties to the judge. He had recused in cases tied to Anschutz on the 10th Circuit.
Gorsuch wouldn’t commit. He said he would have to study the law and the process at the Supreme Court.
10:36 a.m. ET. Gorsuch said he is happy to be called an originalist, but he worries about the use of labels in civic discussion. The term “originalism” doesn’t belong to a party or an ideological wing, he said
Sen. Lindsey Graham, R-S.C., pointed out that Gorsuch has decided more than 2,700 cases and been overturned “once, maybe.”
“I would say that the way you judge has been viewed by the people above you as being acceptable,” Graham said. Despite all of President Trump’s mistakes, Graham said, the president “chose wisely when it came to this man.”
Graham added that he felt President Trump’s criticism of judges was “really out of bounds.” Gorsuch repeated his statement that he takes issue with anyone who criticizes the honesty or integrity or motive of a federal judge.
10:25 a.m. ET. Feinstein said Gorsuch had stated in his book on euthanasia that there is no justification for encouraging the end of life. She noted that California has just passed the End of Life Option Act, and she recalled the suffering of her dying father.
Gorsuch said he wrote the book in his capacity as a commentator, before he became a judge. He said he agrees with the Supreme Court’s Cruzan decision recognizing a right to refuse treatment. “At some point you want to be left alone, without the poking and prodding,” he said. Gorsuch also said he endorses anything needed to alleviate pain, even if it unintentionally causes death.
10:15 a.m. ET. Feinstein posed a question about originalism that was submitted to her by a law professor. (“Uh-oh,” was Gorsuch’s original response.)
Do you agree with Justice Scalia’s statement that originalism means there is no protection for gays or women or lesbians under equal protection law? Feinstein asked.
“It would be a mistake to contend that originalism turns on the secret intentions of the drafters,” Gorsuch said.
A good judge, Gorsuch replied, starts with precedent. Judges should also try to understand what the words on the page mean, Gorsuch said.
So when it comes to equal protection of the law, Gorsuch said, it “matters not a whit” that the drafters of the 14th Amendment were sexists, because they were, or that they were racists, because they were. The meaning of the words matters, he said.
“No one intends to return us to horse-and-buggy days,” Gorsuch said.
10:10 a.m. ET. Sen. Dianne Feinstein, D-Calif., questioned Gorsuch about a one-word note involving the indictment of accused terrorist Jose Padilla, written by Gorsuch when he was in the U.S. Justice Department. The note was written on a document that asked if aggressive interrogation yielded valuable information. The handwritten note by Gorsuch said “yes.”
Gorsuch said his memory from 12 years ago was that he was acting as an advocate. Feinstein countered that people who advise have an obligation to find the truth.
9:59 a.m. ET. Grassley noted that the late Justice Antonin Scalia believed legislative history should not play any role in statutory interpretation. Grassley referenced a case in which a defendant was accused of knowingly violating a statute barring felons from possessing guns. The defendant argued he wasn’t guilty because he didn’t know he was a felon.
Gorsuch followed precedent requiring the government need only prove that the defendant was a felon who knowingly possessed a gun. But Gorsuch argued in a concurrence that the precedent should be revisited. The Gorsuch opinion said legislative history was suspect because it contained “artillery.”
Gorsuch told the committee he respects all the work of Congress “and a good judge takes seriously everything you do.” You don’t close your mind to any argument, he said.
But Gorsuch said the plain meaning of the statute seemed to say “knowingly” applied both to the defendant knowing he was a felon and to his knowledge that he possessed a gun.
“So I thought this was a case where the government had to square its corners,” Gorsuch said. The government should not be allowed to put a man in prison based on legislative history that seems to go against the plain meaning of the law, Gorsuch said.
People should not go to prison based on some secret law, he said.
“There is the little guy right there,” Gorsuch added. “He is a criminal defendant, unsympathetic.”
9:47 a.m. ET. Sen. Charles Grassley, R-Iowa, began the questioning on Wednesday, asking about a case Gorsuch decided involving the Individuals with Disabilities Education Act.
Grassley said the statute balances the interests of children with disabilities with that of the individual school districts, and the balance is a policy judgment made by Congress. Gorsuch said he was bound by precedent in the court’s unanimous decision.
Gorsuch said he has had other cases involving the law in which the student prevailed. “It just depends on the facts and the law of each particular case,” he said.
Confirmation hearings, Day 3: Gorsuch knows ‘how hard’ a judge’s job is. As the Senate Judiciary Committee begins a third day of confirmation hearings for Supreme Court nominee Neil Gorsuch, senators will be able to agree on one thing: the pronunciation of Gorsuch’s name. Gorsuch told senators during a lengthy hearing Tuesday that his name is pronounced “Gore-Such.”
The hearing on Wednesday is scheduled to begin at 9:30 a.m. ET.
On Tuesday, Gorsuch endorsed an independent judiciary, declared that no man is above the law, and took issue with anyone who attacks the integrity, the honesty, the independence or the motives of a judge.
Gorsuch made those comments in response to questions about presidential power and President Trump’s criticism of the judiciary, though he refused to specifically comment on Trump’s judicial criticism.
“I know the men and women of the federal judiciary. I know a lot of them. I know how hard their job is,” Gorsuch said. “And I know how decent they are. And when anyone criticizes the honesty or integrity or motive of a federal judge, I find that disheartening; I find that demoralizing, because I know the truth.”
Gorsuch mostly deflected questions Tuesday about how he would rule in specific cases and about his personal views on issues. His refusal to provide answers led Sen. Mazie Hirono, D-Hawaii, to complain that Gorsuch had been less forthcoming than other nominees.
He was noncommittal when Sen. Dianne Feinstein, D-Calif., referred to to Roe v. Wade as a “super-precedent” and asked Gorsuch if he viewed the opinion that way. Gorsuch replied that Roe has been reaffirmed many times.
He said he couldn’t answer a “politics question” when Sen. Sheldon Whitehouse, D-R.I., asked whether a group planning to spend $10 million to support Gorsuch’s confirmation should have to disclose who contributed to the group.
And Gorsuch laughed when Sen. Patrick Leahy, D-Vt., asked how he would have ruled in the Supreme Court’s Shelby County case, which struck down a provision of the Voting Rights Act. “Senator, I admire the various ways—you would be a formidable companion in the courtroom,” Gorsuch said.
Gorsuch did discuss the context of several cases in which his rulings raised concerns among Democratic senators.
One of those cases was Gorsuch’s dissent in the so-called frozen trucker case, in which a trucker was fired for abandoning a nonworking trailer in 14-below weather. The trucker’s employer had asked the trucker to wait for help, but the trucker said he was numb from the cold. Gorsuch’s dissent said the law, as written, didn’t protect the trucker.
Gorsuch said a focus on his ruling against the worker in the case ignored the body of his work, including many rulings where he did rule for the little guy. “I’m a fair judge,” Gorsuch said. “I can promise you absolutely nothing less.”
Gorsuch also said an opinion he wrote questioning the doctrine of Chevron deference—which holds that federal courts should defer to federal agency views—was a case based on unique facts. The case concerned a bureaucracy overturning judicial precedent without an act of Congress, Gorsuch said.
Gorsuch said the case reminded him of Lucy picking up the football at the last minute so Charlie Brown couldn’t kick it.