Northwest Arkansas Democrat-Gazette
Gorsuch’s talk thrills GOP, vexes Democrats
WASHINGTON — Supreme Court nominee Neil Gorsuch sat for his third day of Senate questioning Wednesday to glowing GOP reviews but complaints from frustrated Democrats who believe he concealed his views from the American public.
Gorsuch, a federal appeals judge in Denver, refused repeated attempts to get him to talk about key legal and political issues of the day. But he did tell Sen. Dianne Feinstein, who worried that Gorsuch would move to restrict abortion, that “no one is looking to return us to horse-and-buggy days.”
The Supreme Court itself ruled unanimously Wednesday in a case involving learning-disabled students, overturning a standard for special education that Gorsuch had endorsed in an earlier case on the same topic.
The decision prompted sharp questioning from Democrats on the Senate Judiciary Committee. “Why in your early decision did you want to lower the bar so low?” Sen. Dick Durbin of Illinois asked.
Gorsuch defended his written opinion in the case, a ruling against an autistic student whose parents had sought reimbursement for his education under a federal law, the Individuals with Disabilities Education Act. He said he was bound by an earlier decision on the 10th U.S. Circuit Court of Appeals and that any implication that he was against success in education for autistic children was “heartbreaking.”
“I was wrong senator, I was wrong because I was bound by circuit court precedent,” Gorsuch said. “And I’m sorry.”
At about the same time Wednesday, the Supreme Court handed down its decision that the 10th Circuit had been wrong. All that was required from public school systems, the 10th Circuit had said, was a “more than de minimis” benefit.
Writing for the Supreme Court, Chief Justice John Roberts disagreed. “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.” Later Wednesday, Durbin elicited another apology from Gorsuch. The senator asked about an email Gorsuch sent while working at the Justice Department in which he criticized lawyers at big firms who were representing Guantanamo detainees. The email, Gorsuch said, “was not my finest hour.”
Feinstein pressed Gorsuch about a torture-related document from his time as a senior Justice Department official in 2005-06. It was a set of questions about the CIA program, including: “Have the aggressive interrogation techniques employed by the administration yielded any valuable intelligence? Have they ever stopped a terrorist incident? Examples?” In the margin next to this, Gorsuch had scribbled, “Yes.”
Feinstein, who was the chairman of the Senate Intelligence Committee when it conducted an investigation into the George W. Bush-era torture program that concluded otherwise, asked Gorsuch what information he had received that led him to write “yes.” He replied: “My recollection of 12 years ago is that that was the position that the clients were telling us. I was a lawyer. My job was as an advocate, and we were dealing with detainee litigation. That was my job.”
Democratic Sen. Patrick Leahy of Vermont questioned whether Gorsuch believed in the Bush administration’s theory that the president, as commander in chief, could override torture and surveillance laws. Gorsuch, who the day before repeatedly said the president was not “above the law,” replied that “presidents make all sorts of arguments about inherent authority — they do — and that is why we have courts, to decide.”
Leahy also noted that Gorsuch has strong support from President Donald Trump’s senior counselor Stephen Bannon, whom Leahy accused of “giving a platform to extremists and misogynists and racists.” Another senior Trump aide, Reince Priebus, had said Gorsuch could change potentially 40 years of law, Leahy said. “What vision do you share with President Trump?” the senator said.
“Respectfully, none of you speaks for me,” Gorsuch said. “I am a judge. I am independent. I make up my own mind.”
Wednesday’s hearing produced an exchange between
Gorsuch and Feinstein on the subject of women’s rights.
Feinstein pointed out that Gorsuch’s “originalist” interpretation of the Constitution has been used in the past to say that the Constitution does not cover women and gays.
“No one is looking to return us to horse-and-buggy days,” Gorsuch responded. Supreme Court precedent has established that the Constitution’s Equal Protection Clause is wide enough to encompass those who were not recognized when it was written.
“A good judge starts with precedent and doesn’t reinvent the wheel,” Gorsuch said, adding that it “matters not a whit” that some who wrote the Constitution were racists or sexists, “because they were.”
What matters, Gorsuch said, were “what the words on the page mean.”
DEMOCRATS FRUSTRATED
Gorsuch generally maintained a mix of earnest talk about respect for previous court decisions, a pledge for absolute independence — “when you put on the robe, you open your mind” — and folksy humor that led to lighthearted exchanges with Republicans about his passion for fly fishing.
But every time Democrats tried to draw him out on a range of serious issues, including abortion and gay rights, Gorsuch answered in the same way: “I have declined to offer any promises, hints or previews of how I’d resolve any case.” Gorsuch similarly wouldn’t commit to a view on cameras in the Supreme Court, an idea that has widespread support from senators on the Judiciary Committee.
He was sticking to the common practice of high court nominees to resist all requests to say how they feel about Supreme Court decisions.
Feinstein summed up her colleagues’ frustration.
“What worries me is you have been very much able to avoid any specificity like no one I have ever seen before,” Feinstein told Gorsuch. “And maybe that’s a virtue, I don’t know. But for us on this side, knowing where you stand on major questions of the day is really important to a vote ‘aye,’ and so that’s why we pressed and pressed.” Republicans, on the other hand, couldn’t get enough of the Colorado native. Sen. Orrin Hatch of Utah said he hadn’t seen a better nominee in 40 years in the Senate.
Lindsey Graham of South Carolina lamented what he called the deterioration of the Senate confirmation process since Antonin Scalia, whose seat Gorsuch would fill, and Ruth Bader Ginsburg were confirmed with more than 90 votes each.
“What’s happened? Did the Constitution change? I don’t think so; I think politics has changed. I think it’s changed in a fashion that we should all be ashamed of as senators, and I think we’re doing great damage to the judiciary by politicizing every judicial nomination,” Graham said.
His statement about the process left out Judge Merrick Garland, former President Barack Obama’s nominee for the seat that opened up when Scalia died more than 13 months ago. Senate Republicans blocked any action on Garland’s nomination all year, and the episode has left Democrats enraged.