As the third day of Supreme Court confirmation hearings for Judge Neil Gorsuch’s rolled on, Democratic senators on the Judiciary Committee grew weary of Gorsuch’s refusal to weigh in on issues, cases, precedents and even basic legal questions.
“What worries me is you have been very much able to avoid any specificity,” the top committee Dem, Sen. Dianne Feinstein (D-CA) told him.
Republicans on the committee however defended his coyness. Sen. Mike Lee (R-UT) posed the question: “If you were to make a commitment today, as to how you might rule, on a certain issue, on a particular type of case and if that issue were subsequently to come before the Supreme Court of the United States, and if by then, you have been confirmed as an associate justice of the Supreme Court of the United States, isn’t it possible and in fact isn’t it likely that a litigant could file a motion for your recusal in that case?”
With Gorsuch keeping to to his line that revealing his personal views would hamper his abilities as a judge, senators zeroed in on the some of his opinions, including one that was undercut by a Supreme Court opinion issued Wednesday morning.
“You have told us time and again, no place for my heart here, this is all about the facts, this is all about the law,” Sen. Dick Durbin (D-IL) said. “I don’t buy that. I don’t think that the decisions of courts are so robotic, so programmatic, that all you need to do is to look at the facts and look at the law, and there’s an obvious conclusion.”
Update 5:12 p.m.: Sen. Richard Blumenthal (D-CT) tried very hard to get some sense of how Gorsuch would rule on abortion, by attempting to engage him on key Supreme Court privacy decisions. Gorsuch did not take the bait.
Update 1:15 p.m.: A Supreme Court case handed down Wednesday morning was the focus of the confirmation hearings for a round of questions, because it undercut reasoning in an opinion Gorsuch wrote in 2008. Read more here.
Update 11:28 a.m.:Gorsuch declined to discuss the Emoluments Clause of the U.S. Constitution, which President Donald Trump has been accused of violating. “I am hesitant to discuss any part of the Constitution to the extent we’re talking about a case that’s likely to come before a court, pending or impending,” he said. “I have to be very careful about expressing any views.” Full write up here.
Update 11:10 a.m.: Rather than say whether he agreed with the late Justice Scalia’s characterization of the Voting Rights Act as a “perpetuation of racial entitlement,” Gorsuch said he didn’t “speak” for Scalia, only himself. Gorsuch did say that the law, which the Supreme Court gutted in 2013, was “designed to protect the civil rights of Americans.”
The question was posed by Sen. Patrick Leahy (D-VT), who noted that President Trump had promised to nominate a Scalia-like judge and that others have compared Gorsuch to the late conservative justice.
“The Voting Rights Act was passed by this body during the civil rights era in order to protect civil rights,” Gorsuch said.
Update 10:38 a.m.: Sen. Dianne Feinstein (D-CA), the top Democrat on the committee, grilled Gorsuch on originalism, equal protection and precedent — issues that could keenly affect how he would rule on abortion, which Feinstein mentioned in passing but didn’t ask Gorsuch about directly.
When Feinstein asked if an originalist approach to the 14th Amendment would mean that it didn’t protect gays and women, Gorsuch first pointed to precedent.
“A good judge starts with precedent. And doesn’t reinvent the wheel, so to the extent there are decisions on those topics and there are, a good judge respects precedent,” Gorsuch said.
Pressed harder by Feinstein, who noted the various hardships women have experienced, Gorsuch mentioned the strong women in his life. He then pointed to a Fourth Amendment case of his to explain his originalist approach. That wasn’t good enough for Feinstein, though.
“Young women take everything for granted today. And all of that could be struck out with one decision,” she said, adding that Supreme Court nominees in the past have promised to observe precedent, only to vote against it. Gorsuch fell back onto his well-trod argument that weighing in on specific questions would hamper his abilities as a judge.
“What worries me is you have been very much able to avoid any specificity,” Feinstein countered.
Update 10:11 a.m.: Asked about the role of legislative history in interpreting law, Judge Neil Gorsuch did not completely shut off using it, but suggested it should play a limited role in considering a case.
“I respect all the work that this body does and a good judge takes seriously everything you do and reads everything put before him or her,” Gorsuch said, before discussing an opinion in which he criticized a precedent that he believes misinterpreted the plain text of the law.
“The plain text of a statute is usually a pretty good starting point and reading it as you’d expect a reasonable citizen to do so….not a pointy headed judge,” he said.
President Donald Trump’s Supreme Court nominee Neil Gorsuch faces a second round of questioning from senators on the Judiciary Committee Wednesday in what will likely be his final day of testimony.
On Tuesday, the second day of hearings, Gorsuch avoided commenting on many of Trump’s more controversial proposals, and also limited what he would say about major issues or pivotal Supreme Court cases. He denied that he was required to meet any litmus tests while going through Trump’s selection process, and defended his own court opinions as they were scrutinized by senators.
Follow along with the hearings here and watch Wednesday’s testimony below: