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Supreme Court Nominations
Posted Mar 23, 2017 07:00 am CDT
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12:35 p.m. ET. The Senate Judiciary Committee breaks until 1:10 p.m. ET.
12:33 p.m. ET. Fatima Goss Graves of the National Women’s Law Center said Gorsuch’s approach to judging has “time and again” disadvantaged women.
She cited one case in which a woman was subjected to sexual harassment. If she complained too early, she had no claim. But if she waited too long, under Gorsuch’s approach, she also had no claim, Graves said.
Graves also referred to the Hobby Lobby case in which Gorsuch joined a decision finding that an employer’s religious beliefs can override its requirement to supply birth control under the Affordable Care Act.
Gorsuch’s record also shows hostility to the Constitution’s protection of personal and intimate decisions, she said.
A review of Gorsuch’s record, with the backdrop of President Trump promising to appoint a judge who would overrule Roe v. Wade, leads to the conclusion that Gorsuch should not be confirmed, she said.
12:27 p.m. ET. Georgetown University law professor Lawrence Solum said there are many myths about originalism. It does not ask what Madison would do. Rather, words of the Constitution can be adapted to new circumstances using originalist interpretation, he said, and that has been established at the confirmation hearings.
Originalism is in the mainstream of American jurisprudence, he said. For the most part, the Supreme Court has been an originalist court.
Originalism should be endorsed by both Democrats and Republicans, Solum said. “I am convinced that giving power to judges to override the Constitution, to impose their own vision of constitutional law, is dangerous,” he said.
12:22 p.m. ET. Heather McGhee, president of Demos, said the way campaigns are funded allows economic might to be translated into political power. And the Supreme Court’s decisions have brought us to this place, she said.
Our government represents a plutocracy more than a representative democracy, McGhee said. Less than 1 percent of the population provides a majority of the funds for elections, resulting in the skewing of public policy toward the wealthy, she said.
Demos released a report last week on extra money flowing into politics because of Supreme Court decisions striking down campaign finance law. The report said the decisions are responsible for almost half of the big money spent. Many of those Supreme Court decision have been decided 5-4.
With a Supreme Court responsive to facts rather than ideology, we could end the Super PACS, she said.
McGhee said Gorsuch would take the Supreme Court further down the path created by the Roberts court. In one case he heard, he gave a harsh standard of review to a challenge to campaign funding limits, she said.
12:16 p.m. ET. MoloLamken partner Jeff Lamken, a Democrat, said he has known Gorsuch as a colleague and friend for 20 years. Lamken has designated Gorsuch to raise his children if anything were to happen to him and his wife.
Lamken said Gorsuch is kind and compassionate, with a generous spirit. His kindness and humility is expressed through the value he puts on listening, Lamken said.
Lamken said he doesn’t know how Gorsuch would rule on specific matters, and he doesn’t think Gorsuch knows either. He struggles with hard cases, listening to litigants and his colleagues. He will decide the cases based on the force of the better argument, Lamken said.
12:09 p.m. ET. Sen. Richard Blumenthal, D-Conn., responds to Gorsuch’s former law clerk, Leah Bressack, who made an unsolicited comment supporting him.
Blumenthal said he is concerned about Gorsuch’s restrictive interpretation of laws that are designed to protect workers.
Blumenthal said he has been in the Senate for seven years, and he has never heard a senator quote the Oxford English Dictionary. Yet Gorsuch uses it often in his opinions in a way that harms workers, Blumenthal said.
11:55 a.m. ET. Sen. Mazie Hirono, D-Hawaii, talked about the U.S. Supreme Court decision on Wednesday that rejected the 10th Circuit standard for interpreting the Individuals with Disabilities in Education Act, a law that requires an appropriate public education for students with disabilities.
Gorsuch had written a decision that took a restrictive 10th Circuit standard and made it even more restrictive for students seeking educational services, Perkins said. Gorsuch had written an opinion rejecting reimbursement for the education provided to Perkins’ autistic son.
11:47 a.m. ET. Leahy said he had asked Gorsuch whether the First Amendment prohibits a religious litmus test for entry into the United States. Leahy said he meant the question as a softball, but Gorsuch said he couldn’t answer it because of pending litigation.
Jaffer said it’s not enough to say “no person is above the law,” as Gorsuch did. All of the Bush administration lawyers on both sides of the torture issue thought they were following the law, Jaffer said.
11:45 a.m. ET. Sen. Amy Klobuchar, D-Minn., asked Human Rights CEO Elisa Massimino how the Supreme Court should approach the balance between national security and individual rights.
Massimino said she had heard Gorsuch testify that no man is above the law, but that is not enough. According to legal memos prepared by Bush administration lawyers, they believed that the law against torture allowed torture in a kind of Alice in Wonderland situation, she said.
Massimino said Gorsuch essentially argued in an email, from his time in the Justice Department, that a law prohibiting torture was actually codifying existing practices, which allowed torture.
It’s extremely important that the Supreme Court be allowed to stand up to executive overreach, Massimino said.
11:35 a.m. ET. Sen. John Kennedy, R-La., questioned a former Gorsuch law clerk, Leah Bressack.
Bressack called Gorsuch “an incredibly caring person” who takes very seriously his job of interpreting the law correctly. He has great sympathy and respect for the litigants before him, she said. He is not only brilliant, but is also humble in the way he approaches important tasks.
He is also interested in his law clerk’s careers and personal lives.
Is he political? Kennedy asked.
“Not when we’re deciding cases,” Bressack said.
11:20 a.m. ET. Answering questions by Sen. Sheldon Whitehouse, D-R.I., Calemine said he is concerned about a project underway to harm worker’s rights and worker organizations through litigation so that workers don’t have the ability to exercise bargaining power.
11:01 a.m. ET. Sen. Dianne Feinstein, D-Calif., talked about Gorsuch’s work at the Justice Department to eliminate habeas appeals for Guantanamo details. She also mentioned his work on a signing statement for President George W. Bush contending that a law banning cruel, inhuman and degrading treatment of detainees codified current policy.
Jaffer said an important question is what Judge Gorsuch knew about CIA interrogation methods, which included waterboarding, when he worked with President George W. Bush on the signing statement.
10:49 a.m. ET. Guerino Calemine III, general counsel for the Communications Workers of America, criticized Gorsuch’s ruling in the so-called frozen trucker case. He warned that Gorsuch could undo health and safety laws that protect working people if he becomes a Supreme Court justice.
Gorsuch is not merely applying facts of the law to cases, Calemine said. His opinions produce absurd results that narrow worker rights, he said.
10:39 a.m. ET. The Washington Post reports that Democrats will filibuster Gorsuch’s nomination.
Senate Minority Leader Charles Schumer, D-N.Y., said he was not sufficiently convinced that Gorsuch would be an independent check on President Trump, according to the Post account.
Gorsuch is “not a neutral legal mind but someone with a deep-seated conservative ideology,” Schumer said. “He was groomed by the Federalist Society and has shown not one inch of difference between his views and theirs.”
The announcement means it could be difficult to amass the 60 votes needed to advance Gorsuch’s nomination, absent a rule change.
10:37 a.m. ET. Jeff Perkins, a plaintiff in a 2008 disability rights case, spoke about his autistic son Luke, who needed specialized educational services. His life was much improved by a special school, but the cost depleted Perkins’ savings. He had sought reimbursement, and a federal judge approved it. But Judge Gorsuch wrote an opinion finding that the federal law governing a free and appropriate education for disabled students required an education that was only slightly above de minimis, Perkins said.
Gorsuch has said he was applying the standard used by the 10th Circuit in interpreting the free and appropriate education required for students with disabilities under the Individuals with Disabilities in Education Act. On Wednesday, the U.S. Supreme Court rejected the standard used by the 10th Circuit.
10:32 a.m. ET. U.S. District Judge John Kane of Colorado said Gorsuch treats the parties with respect, he doesn’t ridicule them and he doesn’t take cheap shots.
Gorsuch is the only judge he knows of who has written both majority opinions and concurring opinions in the same case, Kane said. He knows the difference between speaking for a court and for himself, Kane said.
Gorsuch’s opinions also make clear his keen awareness of the need for the separation of powers and judicial independence.
Gorsuch knows that this social, political and religious views have no place on the bench, Kane said.
10:27 a.m. ET. Jameel Jaffer, executive director of the Knight First Amendment Institute, said it is clear that Gorsuch has the professional competence to serve on the court. But his service in the Justice Department raises important questions about his view of executive power, Jaffer said.
It’s worth noting that Gorsuch appears not to have raised disagreement with any of the policies he defended at Justice, Jaffer said. Rather he appeared to have been dismayed by challenges to the policies.
Jaffer said questions relating to executive power are important today, given President Trump’s travel ban, his vow to prosecute U.S. citizens at Guantanamo, and to increase surveillance of minority communities.
The committee should ask whether Gorsuch will safeguard individual rights and the separation of powers, Jaffer said.
10:21 a.m. ET. Judge Robert Harlan Henry, a former chief judge of the 10th Circuit, said he had served with Gorsuch, and had traveled and dined with him. He has a truly remarkable intellect, fine judicial temperament and oft-demonstrated integrity, Henry said.
10:20 a.m. ET. Elisa Massimino, president and CEO of Human Rights First, spoke about Gorsuch’s role in the U.S. Justice Department during the George W. Bush administration. In his role there, Gorsuch helped craft a signing statement claiming a law banning torture codified existing law, and he sought legislation that would strip courts of habeas jurisdiction to hear cases brought by Guantanamo detainees.
Gorsuch was on the wrong side of the issues, and he helped craft policies that compromised America’s global standing, Massimino said. Given his record, the committee should probe Gorsuch’s views, Massimino said.
Did Gorsuch’s actions at Justice reflect his philosophy or his desire to be a team player? she asked.
10:12 9:59 a.m. ET. Deanell Reece Tacha, former chief judge of the Denver-based 10th U.S. Circuit Court of Appeals, said Gorsuch brings to the bench a powerful intellect combined with a probing and analytical approach. He limits his analysis to the facts and the record, and he does not use his judicial role as a vehicle for anything other than deciding the case before him, she said.
“Judge Gorsuch is a case, by case, by case judge,” she said.
Tacha said Gorsuch is “an elegant and accessible writer,” and she has used his opinions in her writing classes to demonstrate the importance of narrative.
Tacha said collegiality is an important characteristic of a well-functioning court, and that doesn’t mean just going along to get along. Judge Gorsuch pays attention to the views of his colleagues, and he has an acute sense for when reaching consensus is of the highest value, she said. Gorsuch believes in the court as an organic and flourishing entity, where the views of all the judges on the court are important, she said.
Tacha said Gorsuch is her friend. Gorsuch immediately and always affirmed her as a person and as a colleague, she said. She observed him at the courthouse and in social setting, and he is “unfailingly kind,” as well as thoughtful and empathetic to all people.
“Judge Gorsuch lives according tohis values.” Faith, family, nation and his beloved Colorado define who he is, she said.
9:59 a.m. ET. Sen. Lindsey Graham, R-Iowa, asked if Gorsuch was a mainstream judge. Degan avoided the question, and Graham rephrased. “If he’s in a stream, he’s from the quality end of the stream, is that right?” Graham asked.
“He’s fishing in it,” was the reply.
9:54 a.m. ET. Sen. Dianne Feinstein, D-Calif., asked about late-submitted materials in connection with Gorsuch’s work at the U.S. Justice Department. Degan said the committee did not have the opportunity to review the materials, but based on what she heard she does not believe it would change the rating. Degan said Gorsuch had indicated his work was on behalf of the federal government, which was his client.
Feinstein said the documents indicate Gorsuch’s thinking on issues of great concern, namely torture.
Feinstein noted that the committee had also reviewed failed Supreme Court nominee Merrick Garland, who was also described as brilliant, of high integrity and highly respected. Republicans refused to hold a confirmation hearing for Garland.
9:51 a.m. ET. Grassley asked Degan to describe the scope of the review. “We do not give the well-qualified rating lightly, and I can assure you that every member of the standing committee reviewed intently” the more than 900 pages of compiled materials, Degan said.
Edwards said the committee contacted more than 5,000 individuals. A prepared statement by the ABA is here (PDF).
9:46 a.m. ET. Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said the ABA committee’s rating of well-qualified is not given lightly, and Degan agreed.
Grassley noted the standing committee found that Gorsuch had an excellent reputation for integrity and is a person of outstanding integrity. The committee also found that Gorsuch’s professional competence exceeds the high criteria set by the committee, Grassley said. And the committee heard overwhelming praise in support of Gorsuch’s judicial temperament, Grassley said.
Grassley also said the committee had found Gorsuch believes strongly in the judicial branch and would be a strong but respectful voice in protecting it.
9:35 a.m. ET. Two representatives of the ABA Standing Committee on the Federal Judiciary appear first. They are the chair, Nancy Scott Degan, and the committee’s 10th Circuit representative, Shannon Edwards, who was the lead evaluator for Supreme Court nominee Neil Gorsuch.
Degan explained the rating process and said Gorsuch received the committee’s top rating of well-qualified by a unanimous vote.
Gorsuch confirmation hearings, Day 4: ABA testimony expected. Representatives from the ABA Standing Committee on the Judiciary are scheduled to testify Thursday about its well-qualified rating of U.S. Supreme Court nominee Neil Gorsuch.
Testimony before the Senate Judiciary Committee begins at 9:30 a.m. ET. The ABA testimony will be followed by testimony by two former chief judges of the Denver-based 10th U.S. Circuit Court of Appeals, the court on which Gorsuch sits. Representatives of several groups are also slated to testify.
On Wednesday, Democrats on the committee sought clues about whether Gorsuch would vote to overrule the rights to abortion or same-sex marriage by asking questions about the right to privacy, originalism and precedent. They also questioned him about rulings on voting rights and Citizens United, the Supreme Court decision striking down restrictions on corporate campaign spending.
Gorsuch emphasized that he couldn’t comment on issues that could come before him as a judge, and he maintained that his opinions didn’t matter because judges decide cases based on the facts and the law.
Sen. Mazie Hirono, D-Hawaii, said she will have to judge Gorsuch’s nomination based not on what he has said during the hearings, but on what he didn’t say.
“It remains to be seen if you will be a justice for all, or a justice for some,” she said.
Gorsuch did make clear that he believes the president of the United States has to comply with court orders. “You better believe I expect judicial decrees to be obeyed,” Gorsuch said. “That’s the rule of law in this country.”
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