Today was day one of the Senate Judiciary Committee hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Most of the day was taken up with statements made by the 21 Senators on the Committee, which took up almost four hours of the four and a half hour day. While much of it was unremarkable in substance, a few highlights are worth noting. In a separate post, I will come back to the statements by those who introduced Judge Gorsuch following the Committee statements, and then finally a post on Judge Gorsuch’s opening statement that concluded the day.
Committee Chairman Charles Grassley (Iowa) opened with a workmanlike statement highlighting the importance of the separation of powers and the independence of the judiciary in our constitutional order, and the importance that the late Justice Scalia placed on separation of powers as a key element of America’s distinctive character in the family of nations. Most of his Republican colleagues on the Committee echoed these comments in various ways.
Senator Ben Sasse (Nebraska) gave the best civics lesson of the day, which he developed as a reflection on why judges wear black robes, of all things.
Recently elected Senator John Kennedy (Louisiana) concluded the day’s roll of Committee members, and gave a rather interesting set of remarks, particularly given that they came in the last ten minutes of nearly four unbroken hours of Senatorial pomp. He surprised this writer at least, and I suspect many others, by reporting that he had read 20 of Judge Gorsuch’s opinions, which is probably 18 more than most of Gorsuch’s critics on the dais could even name. He also provided a fitting coda to the parade of demands (again mainly from Democrat members of the Committee) for assurances that Judge Gorsuch would be a reliable vote for various progressive issues, by reminding all present that several canons of judicial ethics forbid committing to an advance decision on any future case.
Ranking Member Dianne Feinstein (California), laid out several themes in her remarks which her Democrat colleagues mostly echoed. For starters, “our job is not to evaluate this or that legal theory, it is to determine whether he is a reasonable mainstream conservative or not. Whether he will protect the legal and constitutional rights of all Americans, and not just the wealthy and powerful.”
But she made an odd segue from that theme to her next, that it is the responsibility of judges to make sure that certain types of parties (workers, environmentalists, children, minorities) win their cases every time. Oddly, these types of cases are mainly actions brought under statutes written by Congress, and the criticism of judges like Neil Gorsuch is that they interpret these laws as written by Congress. A number of Democrat Senators returned to this theme, focusing on a couple of cherry-picked cases like TransAm Trucking where they felt that Judge Gorsuch had hurt “the little guy” by applying the law as Congress wrote it instead of based on the relative sympathies of the contesting parties.
Senator Blumenthal (Connecticut) gave what was probably the most measured and reasonable statement of this line of critique. Presuming his sincerity, Senator Blumenthal highlighted several issues which Judge Gorsuch will easily address during tomorrow’s question and answer session with cogent answers. Whether this earns the vote of the Senator from Connecticut is another question.
Senator Hirono (Hawaii), by contrast, couched this statement in one of the most extreme statements of the day:
This hearing is about the people who are getting screwed every second of every day.
Originalism also came in for a lot of predictable and unreasonable abuse from Democrats on the Committee.
The award for most unintentionally comedic moment goes to former Saturday Night Live regular and now Minnesota Senator Al Franken, for alerting ten year veteran Tenth Circuit Judge Neil Gorsuch to the fact that “administrative law can be an obscure and somewhat complicated area.”
For sheer contrast it is worth watching the back-to-back statements of Republican Senator Mike Lee of Utah and Democrat Senator Sheldon Whitehouse of Rhode Island. One of Lee’s well stated points was that he hoped that Judge Gorsuch was not too jaded by the sometimes ruthless partisan and ideological bias and politics that Senators sometimes engage in when dealing with nominations. Immediately following him, Whitehouse opened with: “the question that faces me is, what happens when the Republicans get five appointees on the Supreme Court?” He then spent 10 minutes reducing every single 5-4 Supreme Court decision he could muster to nothing more than the purposeful decision of a Republican-nominated majority to incorrectly decide cases for nothing more than the political advantage of the Republican Party. Nothing like ruthless partisan politics.