Supreme Court nominee Neil Gorsuch on Wednesday declined to comment on Justice Antonin Scalia’s remarks in 2013 criticizing the reauthorization of a key section of the Voting Rights Act.
Sen. Al Franken (D-MN) questioned Gorsuch during his confirmation hearing on Scalia’s comments about Congress’ vote by a vast margin to reauthorize the law in 2006.
“I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia said at the time. “This is not the kind of question you can leave to Congress.”
Scalia attributed the renewal of Section 5 of the Voting Rights Act, which requires state and local governments with a history of racial discrimination to pre-clear any changes to their voting laws with the Justice Department before enacting them, to a “perpetuation of racial entitlement.”
Franken cited comments Gorsuch made during a closed-door meeting when Franken asked if Scalia’s comments “demonstrated a contempt for Congress.”
According to Franken, Gorsuch said that Scalia’s remarks “were not the words” he would have chosen.
“Senator, I admired Justice Scalia greatly but his words are his words and mine are mine and I’d ask you respectfully to judge me based on my credentials and my record,” Gorsuch replied. “Justice Scalia’s legacy will live on a lot longer than mine, I’m sure.”
“It seems to me that he is substituting his own personal views for the facts in the record,” Franken said. “Do you agree a willingness to engage in this kind of speculation could be perceived as judicial activism?”
“Respectfully, I just don’t think it’s appropriate for me to comment on the work of my superiors or Justice Scalia’s words at oral argument or any other justice’s comments at oral argument,” Gorsuch replied.
“Justice Scalia seemed to be reaching beyond legislative history in this case to question the political motivations underlying congressional action,” Franken said. “In your view, is that kind of inquiry appropriate for courts to engage in?”
“Senator, I don’t think it’s appropriate for me to sit here and grade a justice’s comments at oral argument,” Gorsuch said.