[W]ASHINGTON — In his second day of testimony before the Senate Judiciary Committee, Judge Neil Gorsuch continued to equivocate as Democrats pushed him to explain his past rulings and offer a sense of where he would stand on the Supreme Court.
Democrats peppered Gorsuch with questions ranging from his rulings on worker rights to government surveillance.
A unanimous Supreme Court decision handed down Wednesday also became fodder for the hearing. The case mandated that schools offer “appropriately ambitious” educational opportunities for students with disabilities. The ruling also invalidated less stringent legal guidelines set by the 10th Circuit that were defended by Gorsuch in a 2008 opinion. In that case, Gorsuch ruled against the family of an autistic student that wanted reimbursement for an insufficient education at a public school.
On Wednesday, Gorsuch defended his decision. He said he was bound by past precedent, and he did not write the original ruling that was invalidated by the court.
Following 11 hours of questioning Tuesday, Democrats returned Wednesday to their criticism of Gorsuch’s adherence to the legal theory of originalism. If confirmed, Gorsuch would fill Anthony Scalia’s seat on the high court, a justice he has often expressed admiration for. Like Scalia, Gorsuch often strictly interprets the Constitution as it was written more than 200 years ago.
U.S. Sen. Dianne Feinstein, D-Calif., pointed to past comments in which Scalia argued that the Constitution did not explicitly protect women from discrimination, and she pressed Gorsuch to explain his thoughts on the scope of the equal protections set forth in the 14th Amendment.
“When it comes to equal protection of the laws, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists. Cause they were. Or Sexist. Because they were,” Gorsuch said. “The law they drafted promises equal protections of the laws to all persons.”
President Donald Trump promised to nominate a judge who would restrict access to abortion. Given that pledge, Feinstein reiterated her concern that Gorsuch would vote to overturn Roe v. Wade. She made an emotional plea to Gorsuch, recalling the dark days women faced when abortion was illegal.
“I have heard of young women killing themselves,” she said. “I’ve heard of passing the plate in colleges so that a young woman could go to Tijuana to have an abortion.”
“You are pivotal in this,” Feinstein said, alluding to future rulings on women’s rights.
Gorsuch tersely replied, “No one is looking to return us to horse-and-buggy days.”
Dissatisfied with Gorsuch’s testimony to Feinstein, U.S. Sen. Patrick Leahy, D-Vt., followed up with a searing personal story from Vermont at a time when abortion was outlawed.
“I got a call from the police at 3 o’clock in the morning, I was state’s attorney at the time,” Leahy said. “I went to the emergency room at our local hospital, a young co-ed nearly died from bleeding from a botched abortion. At that time it was illegal. We found out the person who procured them, he had done this with a number of people. He would then blackmail them for either sex or money.”
“These are the dark days I don’t want to get back to,” Leahy said.
Before Roe. v. Wade, Vermonters often traveled to Canada to seek abortions legally, and some were slapped with criminal convictions.
As Chittenden County state’s attorney, Leahy argued a case before the Vermont Supreme Court that effectively struck down the state’s criminal abortion law. The groundbreaking 1972 case, Beecham v. Leahy, came a few months before Roe v. Wade affirmed a national right to abortion.
Gorsuch acknowledged the strong precedent of Roe v. Wade and similar cases, but did not affirm that the Roe decision was settled law.
Leah pressed Gorsuch to answer to another Scalia idea, asking, “Do you agree Justice Scalia’s characterization of the Voting Rights Act as a perpetuation of racial entitlement?”
“Senator, I don’t speak for Justice Scalia, I speak for myself,” Gorsuch said.
Leahy then turned to President Donald Trump, and whether Gorsuch would be willing to rule against the man who nominated him. (On Tuesday, Gorsuch promised Leahy generally that “no man is above the law.”)
“What vision do you share with President Trump?” Leahy asked Wednesday.
“Respectfully, none of you speaks for me,” Gorsuch said. “I am a judge. I am independent. I make up my own mind.”
Leahy then shifted to the obscure “emoluments clause” of the Constitution, which declares that no office holder can accept any present or profit from a foreign state. Trump has business interests in at least 20 countries across the world, according to the New York Times.
A group of constitutional scholars — including Zephyr Teachout, a Fordham Law School professor who grew up in Norwich — has filed suit alleging Trump is in violation of the emoluments clause. The case, if accepted, eventually will be decided by the Supreme Court.
“What does the Constitution say the president must do if he or she receives a foreign emolument?” Leahy asked.
“Senator I — that’s a good question,” Gorsuch responded. “I don’t believe it’s been fully resolved.”
“Well, I think it’s kind of easy,” Leahy returned. “The clause prohibits receipt of any emolument without the consent of the Congress.”
“Right,” Gorsuch replied.
“Now, you’re a judge,” Leahy said. “I’m, as I said, just a lawyer from a small town in Vermont. But if it says they cannot receive an emolument without the consent of the Congress, isn’t the answer pretty simple?”
Gorsuch declined to comment on Trump’s specific scenario.
When Gorsuch served on the 10th Circuit, he recused himself from any cases involving Philip Anschutz, a billionaire oil tycoon. Gorsuch worked as a lawyer for Anschutz in the early 2000s, and in 2006, the Denver businessman lobbied for Gorsuch’s appointment to the federal appeals court.
Leahy commended Gorsuch’s decision to disqualify himself in that instance.
But under questioning, Gorsuch did not make the same pledge to recuse himself from any Anschutz cases that may be heard at the Supreme Court.
“If he had a case before the U.S. Supreme Court, would not the facts be the same?” Leahy asked.
“He is a former client, and I treated him like I’ve treated my former clients, large and small,” Gorsuch said. “And, senator, I’d have to look at the recusal standards that are applicable.”
Republicans portrayed the Democrats’ probing questions as unfair to Gorsuch, who has been given the highest marks possible by the American Bar Association and saw virtually no pushback when President George W. Bush appointed him to the 10th Circuit.
U.S. Sen. Lindsey Graham, R-S.C., called on the Senate to support Gorsuch on a bipartisan basis, pointing to his support for two of Democratic President Barack Obama’s choices, Elena Kagan and Sonia Sotomayor.
“I do believe, as president of the United States, [Obama] had a right to pick somebody from the progressive wing of the law,” Graham said. “I expected him to do so and he did. Twice.”
Following Graham’s remarks, Leahy immediately shot back, demonstrating the Democrat’s lingering resentment over the Republican blockade of Merrick Garland.
“I think the record should show President Obama nominated three Supreme Court justices, one of whom was Merrick Garland, a person whose philosophy has been praised by both Republicans and Democrats,” Leahy pointed out to Graham. “And it was a Republican that ignored the Constitution, and did not allow him to have a vote.”
