[W]ASHINGTON — In the opening salvo of the confirmation hearings for Neil Gorsuch’s nomination to the U.S. Supreme Court, Democrats cast President Donald Trump’s pick as a buddy of big business whose radical judicial philosophy lies on the fringes of judicial thought.
Republicans, sitting across from their colleagues at a long crescent confirmation table, portrayed Gorsuch as a brilliant legal mind who will strictly interpret the law without restructuring it.
Gorsuch would fill Anthony Scalia’s seat on the high court. Like Scalia, Gorsuch embraces the legal theory of originalism, which adheres to a strict interpretation of the Constitution as written more than 200 years ago.
In his opening remarks, Senate Judiciary Chairman Charles Grassley, R-Iowa, said that “judges are not free to rewrite statutes to get results they believe are more just.”
“Judges are not free to reorder regulations to make them more fair,” Grassley continued. “For sure, judges aren’t free to update the Constitution. That’s not their job. That power is retained by the people, acting through their elected representatives.”
U.S. Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, offered a contrasting view of the Constitution as “a living document intended to evolve as our country evolves.”
“If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage,” Feinstein said. “Women wouldn’t be entitled to equal protection under the law and government discrimination against LGBTQ would be permitted.”
Gorsuch, 49, listened attentively to the remarks of all members of the committee, jotting down notes periodically as senators spoke.
Occasionally, if a Democrat cast Gorsuch’s legal philosophy as extreme, he shook his head slightly in disagreement. And when he eventually delivered his opening remarks near the end of the day, Gorsuch distanced himself from the fraught political environment of the moment.
He pointed out that he has ruled in favor of the poor, the rich, undocumented immigrants, Native Americans “and against such persons, too.”
“My decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case,” he said.
Republicans are eager to retain their one-seat advantage on the highest court in the land. On Monday, Democrats made clear that lingering resentment remains over the stalled nomination of President Barack Obama’s pick, Merrick Garland, to replace Scalia.
U.S. Sen. Patrick Leahy, D-Vt., begrudgingly listed off Gorsuch’s achievements — from a degree at Harvard Law School to a stint clerking on the Supreme Court — before pointing out that Garland’s resume was virtually the same.
Leahy likened the Republican resistance to Garland to the “action of the tyrannical kings,” adding it was “one of the greatest stains on the 200-year history of this committee.”
“Today marks the first time the Senate Judiciary Committee has met publicly to take action on a Supreme Court vacancy that resulted from Justice Scalia’s death 13 months ago,” Leahy growled.
Along with all the Democrats on the committee, Vermont’s senior senator said Monday that he had myriad concerns with Gorsuch, and was hoping for honest and candid testimony throughout the week. Leahy concluded that the week’s hearings would heavily shape his decision to back the nomination.
“I can honestly say I have yet to decide how I’m going to vote on this nomination,” he said.
(While Leahy has consistently voted for Supreme Court justices nominated by Democratic presidents, he has also cast votes in support of conservative nominees, including John Roberts, who currently serves as chief justice.)
Monday’s hearing was largely procedural, with Gorsuch and each member of the committee delivering opening remarks that drew out the battle lines over legal doctrine that are sure to become more pronounced as the week wears on.
In their criticism Monday, Democrats often invoked Gorsuch’s writing in a case involving the termination of a TransAm trucker. The trucker, Alphonse Maddin, was fired for insubordination by TransAm after he abandoned his cargo on a frigid night after facing brake issues.
“He called his company for help and someone there gave him two options,” Gorsuch wrote last year in a dissenting opinion. “He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or, he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station.”
“It might be fair to ask whether TransAm’s decision was a wise or kind one,” Gorsuch continued. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
Gorsuch believed that Maddin’s firing was legal, a view that differed from his two colleagues on the U.S. Court of Appeals for the 10th Circuit. Despite Gorsuch’s dissension, the court upheld an earlier ruling from a panel at the U.S. Department of Labor that contended Maddin was protected under a federal job safety law.
To Democrats, Gorsuch’s thoughts on the firing represented a broader ideology to ignore the “little guy.”
Gorsuch’s nomination has been hailed by members of the corporate class, including the conservative lobbying group the U.S. Chamber of Commerce. President Trump dispatched another conservative group, the Federalist Society, to recruit Gorsuch for the job. The Federalist Society’s backers include the oil tycoons Charles and David Koch, and Robert Mercer, a hedge fund manager.
Senators pointed to Gorsuch’s opposition to the so-called Chevron doctrine as evidence of his bias towards business and regulation. This legal principle, established in a 1984 Supreme Court ruling, directs judges to defer to federal bureaucrats over the interpretation of statutory language.
Leahy, who has voted for 13 Supreme Court nominees, said, “I do not know of any other Supreme Court nominee who was selected by special interest groups rather than by a president in consultation with the Senate.”
“Will you elevate the rights of corporations over those of real people?” Vermont’s senior senator asked hypothetically.
In addition to their concerns over the TransAm case, Democrats also expressed concerns over how Gorsuch would rule on cases relating to gun regulations, privacy rights and access to abortion.
While Gorsuch hasn’t ruled on an abortion case, he wrote in his book “The Future of Assisted Suicide and Euthanasia,” that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
Gorsuch also has a strong record of advocating for religious exemptions from federal mandates. He objected, for instance, to the mandate set forth in the Affordable Care Act requiring companies to provide contraception to their employees.
“[Gorsuch] wrote that he believes that there are no exceptions to the principle that ‘the intentional taking of a human life by private persons is always wrong,’” Feinstein said Monday, offering a flurry of concerns over how Gorsuch would rule on women’s health issues.
Beginning early Tuesday morning, each member on the Judiciary Committee will have time to directly question Gorsuch on his record. Chairman Grassley said he hoped to have a committee vote on Gorsuch on March 27, and get his nomination to the Senate floor before the Easter recess, on April 3.
In 2006, Gorsuch was confirmed unanimously by a voice vote on the Senate floor for the position he currently holds on the 10th Circuit.
During that confirmation process, Leahy said Gorsuch “appears to be a very conservative nominee.” On Monday, he echoed those remarks, and said what his standards for approval were.
“I need to know that you understand the role of the courts in protecting the rights of all Americans,” Leahy said. “I need to know that you can be an independent check and balance on the administration that’s nominated you, and on any administration that might follow it.”
“A court’s aspiration, after all, is to provide ‘equal justice under the law,’ Leahy concluded. “That’s inscribed in Vermont marble over the doorway to the court.”
