Senate Democrats, preparing to grill Judge Neil Gorsuch with questions at his Supreme Court nomination hearings, tipped their hand Monday.
In opening remarks before the Senate Judiciary Committee, Democrats foreshadowed the attacks they will lodge against the 10th Circuit Court of Appeals judge this week. They are preparing to portray him as an enemy of the “little guy” while asking questions about his originalist philosophy, independence from President Trump and the real-world outcomes resulting from his previous decisions.
Sen. Patrick Leahy, D-Vt., spotlighted a series of positives in Gorsuch’s record before noting that none of it was enough for the senator to earn his support.
“All of those things I’ve read were sufficient reason to confirm a nominee to the Supreme Court, but of course Judge Merrick Garland, who had exactly the same qualifications but was refused by the Republicans, would be sitting on the court today,” Leahy said. “That’s why philosophy becomes important.”
The committee’s top Democrat went a step further and suggested that Gorsuch’s judicial philosophy of originalism is dangerous. Originalism, a judicial philosophy popularized by the late Justice Antonin Scalia, holds that the Constitution has a static meaning.
Feinstein argued that under an originalist view of the Constitution, schools would have remained segregated and women would not have earned the right to vote. She did not explain how amending the Constitution would have been impeded by a justice with an originalist approach.
“This is personal, but I find the originalist judicial philosophy really troubling,” Feinstein said. “I firmly believe the American Constitution is a living document intended to evolve as our country evolves.”
Senate Minority Whip Dick Durbin subscribed more sinister motivations to Gorsuch’s nomination and suggested the judge’s selection was the handmaiden of a GOP plot to paint the judiciary red.
“Your nomination is part of a Republican strategy to capture our judicial branch of government,” Durbin told Gorsuch at Monday’s hearing.
Durbin added that he would be asking about Gorsuch’s relationship with Trump and the White House in the coming days.
“It’s incumbent on any nominee to demonstrate that he or she will serve as an independent check or balance of the presidency — there are some warning flags,” Durbin said. “Feb. 23rd, White House Chief of Staff Reince Priebus said and I quote, “Neil Gorsuch represents the type of judge that has the vision of Donald Trump” closed quote. I want to hear from you why Mr. Priebus would say that.”
Several Judiciary Committee Democrats spoke about their concerns over how the outcomes of Gorsuch’s cases affected individual people. Minnesota Sen. Al Franken said he wanted to make sure Gorsuch would “take proper measure of the challenges the American people face every day.” Similarly, Hawaii Sen. Mazie Hirono told Gorsuch, “You rarely seem to find in favor of the little guy.
“There’s a clear pattern to your writing: You consistently choose corporations and powerful interests over people,” Hirono said. “But more than that you have gone to great lengths to disagree with your colleagues on the 10th Circuit so that you can explain why some obscure or novel legal interpretation of a particular word and statute must result in finding for a corporation instead of an individual who has suffered real-life harm.
“This tendency demonstrates a commitment to ideology over common sense and indeed the purpose of the law and is deeply troubling.”
Gorsuch will have allies from the committee’s Republican members, who expressed a desire to eliminate politics from Gorsuch’s nomination hearings after choosing not to hold hearings on Garland’s nomination. In a rebuke to Hirono’s accusation that Gorsuch is harmful to the “little guy,” Nebraska Sen. Ben Sasse said, “Empathy is not the role of a Supreme Court justice.”
Gorsuch is benefiting from some Democratic support, including from Neal Katyal, an Obama administration acting solicitor general. Gorsuch’s liberal allies could prove critical to his confirmation effort, and Katyal’s introduction of Gorsuch Monday appeared aimed at alluring persuadable Democrats.
“It is a tragedy of national proportions that [President Obama’s failed nominee] Merrick Garland does not sit on the court and it would take a lot to get over that,” Katyal said. “Indeed, there’s less than a handful of people that the president could have nominated to even start to rebuild that loss of trust. But in my opinion Neil Gorsuch is one.”
Katyal is one of the lead attorneys in Hawaii’s suit against the Trump administration’s travel ban. Katyal’s remarks indicated that he thought Gorsuch would challenge the Trump administration when the judge found it necessary to do so.
“As a judge, he’s displayed a resolute commitment to the rule of law and the judiciary’s independence. Even those who disagree with him can see the judge’s decisions are meticulously crafted and grounded in the law and our Constitution,” Katyal said. “And when the judge believes the government has overstepped its powers, he’s willing to rule against it.”
Gorsuch remained largely quiet for Monday’s hearings, which lasted more than four hours. He scribbled notes on a legal pad periodically when senators referred to individual cases he has adjudicated.
When he did speak, Gorsuch grew emotional in talking about his family during his brief remarks Monday afternoon. The 10th Circuit judge urged collegial camaraderie in an effort to assuage his critics’ concerns.
“Long before we’re Democrats or Republicans, we’re Americans,” Gorsuch told the committee.
