Confirmation hearings for Supreme Court nominees act out a peculiar Washington ritual in which inquisitive senators gather before TV cameras to hear an aspiring justice politely refuse to answer their questions on all the pressing legal issues of the day.
To no one’s surprise, Judge Neil M. Gorsuch, President Trump’s nominee, portrayed himself as an earnest, idealistic jurist who did not want to “tip his hand” by voicing his views. Justice Sonia Sotomayor and Chief Justice John G. Roberts Jr. followed the same script on their way to confirmation, as does virtually every nominee.
But three days of testimony before the Senate Judiciary Committee revealed some of Gorsuch’s thinking and gave hints as to what kind of justice he could be.
Gorsuch, 49, appears to be a strict “textualist” who believes in following the exact words of a law, even if doing so leads to a seemingly unfair or undesired result.
But he may not be as much of a true “originalist” as the late Justice Antonin Scalia, who advocated following the meaning of the Constitution as it was understood at the time it was written.
When pressed on originalism during his hearing, Gorsuch said constitutional promises like “equal protection of the laws” should be read broadly according to the actual wording, and in light of the court’s precedents, not in line with the views of 1868, when the 14th Amendment was adopted.
“No one is looking to return us to the horse-and-buggy days,” he told Sen. Dianne Feinstein (D-Calif.) when she asked whether he agreed with Scalia that the 19th century amendment should not be used to create anti-discrimination protections for women or gays and lesbians today.
“[I]t matters not a whit that some of the drafters of the 14th Amendment were racists, because they were,” he said. “Or [that they were] sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That's what they wrote.”
The U.S. 10th Circuit Court of Appeals judge from Denver said he would use the Constitution’s “enduring” principles and apply them “to current realities, not to drag us back to a past but to move forward together as judges applying the law neutrally.”
It was a somewhat different tone for Gorsuch. In a speech last year honoring Scalia, Gorsuch said judges should be “focusing backward” to apply the law as it was “understood … at the time of the events in question.”
Sen. John Cornyn (R-Texas) asked the nominee to explain his “looking backward” comment because it had been cited by his critics. Is this approach “not hostile to social progress?” he asked.
“Backward does not mean backwards, senator,” he replied.
Gorsuch’s comments during the hearings sounded similar to what liberal judges and law professors often espouse. They say phrases like “equal protection” and “liberty” are broad promises that should be interpreted in light of today’s views and the court’s precedents.
Democratic lawmakers did not appear satisfied by Gorsuch’s performance.
On Thursday, as the committee heard from outside witnesses, Senate Minority Leader Charles E. Schumer (D-N.Y.) said Democrats would seek to filibuster his nomination. Under the current filibuster rule, it would take 60 votes to end the debate over his nomination, and there are only 52 Republicans in the Senate.
It is not clear whether all Democrats will join Schumer. So far none have announced plans to vote for Gorsuch. But even if Democrats filibuster, Senate Majority Leader Mitch McConnell (R-Ky.) could change the rules and allow for Gorsuch to be approved by a simple majority of 51 votes.
So one way or another, most predict Gorsuch will be confirmed, despite Democrats’ best efforts to draw out his conservative views.
During testimony on Tuesday and Wednesday, Gorsuch’s insistence on strictly following the words of the law led to sharp exchanges with several Democrats. They pounced on the case of the so-called frozen truck driver, which they said suggested Gorsuch had a cold heart. Gorsuch insisted it showed he would follow the law as Congress has written it, rather than rule based on his personal view of what was fair or just.
It began when Alphonse Maddin was driving a commercial truck on a January night in 2009 and the brakes on the trailer froze. He reported the problem to TransAm Trucking, his employer, and waited hours in the sub-zero cold for a repair truck. He grew numb from the cold, began slurring his speech and decided to unhitch his trailer and drive to a service station.
Maddin was later fired for abandoning his trailer and ignoring a supervisor’s instructions to stay put. He sued under a federal law that protects whistle-blowers from being fired for refusing to operate an unsafe vehicle. An administrative law judge ruled he was entitled to back pay, and the 10th Circuit upheld the decision last year in a 2-1 vote.
Gorsuch dissented. “It might be fair to ask whether TransAm’s decision was a wise or kind one,” he wrote. But “the trucker in this case wasn’t fired for refusing to operate his vehicle.” He was fired for driving away in the truck, he said.
Sen. Al Franken (D-Minn.) called his view “absurd,” but Gorsuch stood his ground.
In another case, Gorsuch expressed support for a Colorado man appealing his five-year sentence for violating a law that made it a crime to “knowingly” be a felon in possession of a gun. The defendant, Miguel Games-Perez, argued the law should not apply to him because, although he knew he was in possession of a weapon, he did not know he was a felon. The sentencing judge at his earlier robbery trial had told him his crime was not a felony.
Prosecutors dismissed his claim as a technicality and insisted they only had to prove that he “knowingly” carried a gun, not that he knew he was a felon.
The 10th Circuit ultimately rejected his appeal based on prevailing precedents. But Gorsuch wrote a concurring opinion that illustrated his strict adherence to the words of the law.
“So the statute there says and, simplifying, that it's a crime to knowingly be a felon in possession of a gun,” Gorsuch told senators. “How does the word ‘knowingly’ leap over the world ‘felon’ and only touch down at the word ‘in possession.’ It defied a bit of grammatical gravity, the defendant argued. And, as a matter of plain meaning, I had to agree with him.”
That approach reflects a shift in legal thinking that Scalia had led. During the 1970s, the justices regularly decided cases by applying the intent and purpose of a law passed by Congress. When Scalia arrived in 1986, he insisted on looking closely at the text of the law, not its overall purpose.
These days, most of the justices stick closely to the text, and Gorsuch should find himself in familiar company on that front.
As it usually does, the Roe vs. Wade ruling that legalized abortion played an out-sized role in the confirmation hearing, but mostly in a discussion of when to overturn precedents.
Gorsuch steadfastly refused to reveal how he might rule on the issue. But in discussing his approach to precedents, he set a fairly high bar for himself in describing the conditions he would consider before overturning any Supreme Court ruling.
“Precedent is like our shared family history of judges,” he said. “It deserves our respect.”
Among other things, he said he would consider the age of the ruling, to what degree the country had come to rely on it, whether it had been reaffirmed over the years and whether its legal foundation remained solid or had become “an island.”
On most of those counts, the 1973 Roe decision would fare well.
His comments seemed aimed to assure Democrats he had no intention to flatly overrule the right to abortion, even though Trump promised to appoint only “pro-life” judges. When questioned closely, however, Gorsuch refused to endorse or accept the “right to privacy” that was the basis of the abortion ruling.
Sen. Richard Blumenthal (D-Conn.) pressed the point near the end of the third day of hearings. He asked whether Gorsuch agreed with the high court’s 1965 decision in Griswold vs. Connecticut, which struck down a state’s ban on contraceptives because it violated the right to privacy of married couples.
“It is more than 50 years old,” Gorsuch replied, insisting it would be wrong to say more about the reasoning behind the decision.
A few minutes later, Gorsuch lauded the high court’s 1967 decision in Loving vs. Virginia, which struck down bans on interracial marriages in Southern states. He said it was a “great moment” in the court’s history because it upheld the promise of the “equal protection of the laws” in the 14th Amendment.
But Blumenthal said he was troubled by Gorsuch’s refusal to comment on the right to privacy, noting that Chief Justice Roberts and other Republican nominees had testified they accepted the right to privacy as a settled principle.
Taken together, Gorsuch’s comments suggest he might join with the court’s conservative justices in voting to limit the right to abortion but stop short of reversing it.
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