Court Battles

Friends, foes spar in fight on Trump’s Supreme Court nominee

Victoria Sarno Jordan

Friends and foes of Neil Gorsuch lobbied the Senate Judiciary Committee Thursday both for and against confirmation of the Colorado-based judge to the Supreme Court.

Gorsuch frustrated Democrats during more than 20 hours of testimony and questions this week by refusing to share his personal views on even the most widely accepted landmark rulings, including Brown v. Board of Education and Roe v. Wade.  

{mosads}That gave fodder to his critics, who spoke on the fourth full day of hearings.

Heather McGhee, president of Demos, a liberal policy think tank, lambasted Gorsuch for not distancing himself from the court’s decision in Citizens United v. FEC, which struck down limits on campaign contributions.

But Sen. John Kennedy (R-La.) pushed back against her criticism.

“Do you really expect a nominee of the United States Supreme Court — whether he or she is nominated by a Democratic president or a Republican president — to come before the United States Judiciary Committee and talk about what’s good policy or bad policy?” he asked.

But McGhee argued that Gorsuch could have talked about enduring democratic principles without getting into policy.

“I am saying he had an opportunity to say basic principles about our democracy and upholding an interpretation of the First Amendment that would protect a vision of one person, one vote,” she said.

McGhee’s line of attack echoed the frustrations of Democratic senators on the panel, who are beginning to point to his lack of candor and transparency as a potential reason to filibuster his nomination.

So far, eight Democratic senators have said they’ll oppose final confirmation.

But supporters used the final day of Gorsuch’s hearing to praise what they called his exceptional record of experience and faithful application of the law.

Peter Kirsanow, a Republican member of U.S. Commission on Civil Rights, said he reviewed nearly 200 cases related to civil rights that Gorsuch either authored or participated in, and found his approach consistent with accepted textural interpretations of statutory laws and the Constitution.

“If you’re looking for someone to apply the statutory text as written by this body, he’s your judge,” he told the committee.

Members of the American Bar Association’s Standing Committee on the Federal Judiciary also testified; the committee contacted 5,000 people nationwide for an evaluation of Gorsuch and gave him its highest rating of “well-qualified.”

But testimony from the nominee’s former colleague on the 10th Circuit Court of Appeals only seemed to further frustrate Democrats such as Sen. Al Franken (Minn.)

Retired Judge Deanell Tacha praised Gorsuch for his acute sense of identifying important circumstances and reasons to reach consensus with his colleagues and “on the other hand, those decision points where personal conviction and reason dictate individual judgment and independent decision-making.” 

But Franken said the committee had just spent three days hearing over and over and over again from Gorsuch that his personal convictions don’t matter.

“Now someone who’s endorsing him say they do matter,” he said. “And this is what I worry about — that we were not allowed to hear any personal convictions, yet now I’m hearing that those matter a great deal.”

In a similar line of attack, Amy Hagstrom Miller, president and CEO of Whole Women’s Health, said she was troubled that Gorsuch refused to affirm the landmark case that legalized abortion.

“What we’ve seen him do is acknowledged that Roe exists, but I haven’t heard him affirm that he’s going to uphold it,” she said.

“I believe that Roe v. Wade is precedent and it’s important for the justices to uphold precedent.”

As the Judiciary Committee heard testimony from human and civil rights advocates, business groups, judges and law clerks, Senate Democratic Leader Charles Schumer (N.Y.) announced plans to filibuster Gorsuch and force Republicans to get 60 votes to advance his nomination.

The announcement followed Sen. Bob Casey Jr.’s (D-Pa.) decision to publicly oppose Gorsuch. As the day went on, other senators, including Sen. Bernie Sanders (I-Vt.) followed suit.

In a statement announcing his forthcoming “no” vote, Sanders said, Gorsuch “brought the confirmation process to a new low in a thick fog of evasion” by refusing to answer legitimate questions about his views on important issues.

Opponents also pointed to decisions Gorsuch either joined or authored to demonstrate what they say are conservative views, cases in which he ruled against environmental groups, victims of sexual harassment, a fired truck driver and children with disabilities.

George Washington University Law School professor Jonathan Turley, however, argued that Gorsuch shouldn’t be penalized for his past opinions.

“The jurisprudence reflect, not surprisingly, a jurist who crafts his decisions very close to the text of a statute, and, in my view, that is no vice for a federal judge,” he said.

Turley said he does not expect Gorsuch to be a “robotic vote” for the right of the court.

“While conservative, he’s shown intellectual curiosity and honesty that I think is going to take him across the ideological spectrum,” he said.

The committee heard gut-wrenching testimony Thursday from a mother whose daughter was killed in the 2012 mass shooting at a movie theater in Aurora, Colo.

Sandy Phillips described to the committee in detail where each bullet struck her daughter, Jessica.

 “This committee must know, does this nominee believe the Second Amendment has limits? Doe this nominee recognize that it does not override any other constitutional right, like my daughter’s right to live in safe community?” she asked. 

“Does this nominee understand that as times change, laws must change and responsible regulations to protect communities from gun violence have been recognized and are constitutional?” she continued.  

“To be confirmed, any Supreme Court nominee must answer these questions clearly and convincingly. If not, public safety is at risk.”

Jamil Jaffer, a former law clerk for the nominee, told Phillips that Gorsuch is the kind of judge she and her daughter would want on the bench.

“He’s the kind of judge that applies the law fairly and evenhandedly to all litigants before him,” Jaffer said. “He’s the kind of judge that doesn’t rule based on a policy preference or a preference for an outcome, but on the law as it’s written by the members of this body.”

Then things got awkward, as Phillips asked Chairman Chuck Grassley (R-Iowa) to note in the record that “this gentleman next to me does not speak for me or my dead daughter.”

Jaffer later apologized, and said he did not mean to speak on behalf of Phillip’s family.

Despite moments of tension and mounting Democratic opposition, Grassley told reporters after the hearing that he wonders if Democrats’ plan to filibuster Gorsuch is just a “smoke screen.” 

He then claimed his colleagues on the other side of the aisle had “poisoned the well” when it comes to judicial confirmations.

“It seems to me like it’s time to drill a new well.”

Tags Al Franken Bernie Sanders Bob Casey Charles Schumer Chuck Grassley
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