Neil Gorsuch testifies in Supreme Court confirmation hearing

President Trump's pick for the Supreme Court is testifying before the Senate Judiciary Committee on Wednesday. It is Day 3, what is expected to be the final day of hearings on Judge Neil Gorsuch's nomination. If confirmed, Gorsuch would fill the high court seat left vacant in February 2016, after the death of Justice Antonin Scalia.


  • Live blog: Neil Gorsuch enters the third day of confirmation hearing

    The NPR politics team will live blog the Senate Judiciary Committee's hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. The live blog will include streaming video, with posts featuring highlights, context and analysis from NPR reporters and correspondents.

    President Trump's pick for the Supreme Court is testifying before the Senate Judiciary Committee on Wednesday. It is Day 3, expected to be the last day of hearings on Judge Neil Gorsuch's nomination. If confirmed, Gorsuch would fill the high court seat left vacant in February 2016, after the death of Justice Antonin Scalia.

    Gorsuch, 49, is currently a federal appeals court judge in Denver. His selection fulfilled an early campaign promise of Trump's to nominate a solidly conservative judge with a record of strictly interpreting the U.S. Constitution. Senators are expected to question him on a variety of social issues and legal doctrine, including his skepticism of the power of federal agencies.

    • Day 1: Republicans praise Gorsuch, Democrats decry Garland treatment

  • Grassley: Gorsuch Is 'Agnostic' On Business Cases

    Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, looks on during the first day of the Supreme Court confirmation hearing for Judge Neil Gorsuch on Monday. Justin Sullivan/Getty Images
     

    Senate Judiciary Committee Chairman Chuck Grassley spoke to NPR’s Rachel Martin on Morning Edition ahead of the second day of Supreme Court nominee Neil Gorsuch’s confirmation hearing. The Iowa Republican defended President Trump’s pick from Democratic accusations on Monday that he was too pro-business in his approach to many cases he had previously decided.

    "You’ll hear today probably from Democrats and maybe some Republicans that maybe he takes the side of corporations and as the Democrats would say leave out the little guy. I think he’s agnostic to those points of view,” Grassley said. “If you read his decisions sometimes he takes the business point of view and the other times he takes the little guy point of view.”

    “He sees his job as looking at the laws and the facts of the case and being dispassionate. And I think if you would take a look at some of his 154 decisions he’s written and 65 decisions that he’s helped write or be a part of you’d find out that he pretty aggressively follows it,” the Judiciary Committee chairman added.

    Grassley also dismissed Democratic complaints on Monday that it was Merrick Garland, President Obama’s pick for the seat of the late Justice Antonin Scalia, who should be sitting before them instead of Gorsuch. Senate Republicans denied Garland a hearing, arguing that no nominee should be confirmed during an election year.

    Grassley predicted that ultimately Gorsuch would get enough Democratic votes to avoid a filibuster from derailing his nomination, which could push Republicans to change the 60-vote threshold that remains for Supreme Court nominees.

    "I don’t accept the premise that he’s got to have 60 votes, he would have to have 60 votes if there is a filibuster and some people have threatened to venture forth with a filibuster, but I’m not sure that’s going to be the case,” Grassley said. “We want to assume that it’s going to take 51 votes to get him through and we aren’t even going to spend any time talking about the necessity of 60. If it arrives at that we would hope that we would be able to deliver him and try to do that. But I think at the end of two days when he’s done answering his questions, there’s a lot of Democrats that are going to have a difficult time justifying the vote against him.”

    Jessica Taylor at 8:35 AM CDT

  • Blumenthal Wants To Know If Gorsuch Will Stand Up To Presidential Overreach

    Senate Judiciary Committee member Richard Blumenthal, D-Conn., told NPR’s Rachel Martin on Morning Edition Tuesday he’ll be looking for signs from Supreme Court nominee Neil Gorsuch during today’s hearings that he will be willing to recognize and push back on executive branch overreach — even if that means offending the man who nominated him, President Trump.

    "The question is not whether he is aware of the danger of overreach or infringement on the powers of other branches, but whether he is willing to stand up to it, speak out against it as I’ve asked him to do…. The possibility that the Supreme Court may have to rule on a subpoena for the president is no longer an idle possibility because of the news yesterday that the FBI is investigating Donald Trump’s associates in connection with Russian meddling in our elections,” Blumenthal said.

    The Connecticut Democrat stirred controversy last month when he revealed that in his meeting with Gorsuch, the nominee had expressed concerns over President Trump’s attacks on the judiciary. And while Blumenthal said he was heartened by those comments, he wants Gorsuch to be forthcoming in his testimony today about how he would deal with real-life situations if he is confirmed to the bench.

    “The awareness of presidential overreaching is fine,” Blumenthal continued. “The question is whether he will demonstrate in action, not just in words.”

    Blumenthal also echoed Democratic complaints from Monday over how President Obama’s nominee for the same seat, Judge Merrick Garland, was treated by Senate Republicans and denied a hearing during an election year. But, Blumenthal said he would give Gorsuch a fair consideration.

    "There is no question that many of us continue to be very angry about the constitutional dereliction and obstruction in the Republican leadership’s action preventing a vote, even a hearing, on Merrick Garland, who was eminently qualified,” Blumenthal said. “And in fact Judge Gorsuch, I think would concede that he was eminently qualified; he shares many of the resume and credential aspects that Judge Gorsuch does. But I am going to review this nominee's merits, qualifications, credentials independently of that anger, because I think we have a very important responsibility.”

    — Jessica Taylor at 8:46 AM CDT

  •  

    Could Gorsuch Rule Against Trump? 'That's A Softball Question,' He Says

    Senate Judiciary Committee Chairman Chuck Grassley was quick out of the gate with a question on both Republicans’ and Democrats’ minds for Supreme Court nominee Neil Gorsuch: Could you rule against President Trump, if warranted?

    Gorsuch was ready and unflappable. “That’s a softball question,” he responded confidently. “I have no difficulty ruling against or for any party other than based on what the law and the facts of a particular case require.”

    “There’s no such thing as a Republican judge or a Democratic judge — we just have judges in this country,” he added.

    Gorsuch said he would use his mentor and fellow Coloradan, the late Justice Byron White, as a model for judicial independence if confirmed.

    “I take the judicial process very seriously and through it, step by step, I keep an open mind through the entire process as best I can, and I leave all the other stuff at home,” Gorsuch said.

    — Jessica Taylor at 9:03 AM CDT

  • Gorsuch: 'I Don't Believe In Litmus Tests For Judges'

    Supreme Court nominee Neil Gorsuch testifies during the second day of hearings. Mandel Ngan/AFP/Getty Images
     

    Supreme Court nominee Neil Gorsuch continued to stress his independence during his questioning by Senate Judiciary Committee Chairman Chuck Grassley, relaying that he offered no promises to President Trump on how he would rule on certain cases or issues if he is confirmed.

    “I don’t believe in litmus tests for judges,” Gorsuch said.

    Throughout the campaign, Trump promised he would nominate a conservative jurist to the bench to fill the seat of the late Justice Antonin Scalia. That vacancy became a major campaign issue after Senate Republicans refused to consider President Obama’s pick for the seat, Judge Merrick Garland, saying no one should be confirmed during an election year. Trump also said he would look to nominate someone who would overturn the seminal abortion rights decision, Roe v. Wade.

    But Gorsuch reiterated he made no promises to the White House about how he would or wouldn’t rule on a case.

    “I’m here to report you should be reassured because no one in the process asked me for any commitments or any promises about how I’d rule in any case,” Gorsuch said. “I have offered no promises on how I would rule in any case to anyone and I don't think it'd be appropriate for a judge to do so.”

    — Jessica Taylor at 9:30 AM CDT

  • Gorsuch Won’t Tip Hand On Abortion, Campaign Finance

    Nominee Neil Gorsuch wouldn’t give the Senate Judiciary Committee a hint on how he would rule on certain hot-button issues, but reiterated he has respect for precedent set by past Supreme Court decisions.

    “Your personal views about the precedent have absolutely nothing to do with a good judge,” Gorsuch said.

    “They haven’t yet replaced judges with algorithms, though I think eBay is trying,” he quipped, though the joke largely fell flat in the Senate hearing room.

    As Judiciary Committee Chairman Chuck Grassley ticked off some of the most debated Supreme Court decisions — Roe v. Wade on abortion, Citizens United v. FEC on campaign finance and Bush v. Gore, which decided the 2000 presidential election — Gorsuch wouldn’t tip his hand on how he felt about them other than to say that they were important precedents that any good judge would take into account.

    “Precedent is kind of like our shared family history as judges,” Gorsuch said. “It deserves our respect because it reflects our collective wisdom.”

    If he were to say how he would rule on certain issues or to name which precedents were his favorites, Gorsuch argued that would be “suggesting to litigants that I have already made up my mind about their cases.”

    Pressed next by committee ranking member Dianne Feinstein as to whether the landmark 1973 abortion rights decision Roe v. Wade was a “super precedent,” Gorsuch said, "It has been reaffirmed many times, I can say that."

    — Jessica Taylor at 9:51 AM CDT

  • Gorsuch Defends Business Rulings

    On Day 1 of Gorsuch’s confirmation hearing, it became clear a major theme Democrats were ready to pursue was that his rulings have been too friendly toward corporations and skewed against the “little guy.”

    The Supreme Court nominee pushed back on that characterization Tuesday when he was asked by ranking member Dianne Feinstein, “How do we have confidence in you that you won’t just be for the big corporations?... I'm just looking for something that would indicate you would give a worker a fair shot."

    “I'd like to convey to you from the bottom of my heart that I'm a fair judge,” Gorsuch responded, listing off several cases where he had, in fact, ruled against corporations.

    — Jessica Taylor 10:16 AM CDT

  • Shadow Of Garland Reappears On Gorsuch Hearing Day 2

    The man most Democrats think should be before them right now — President Obama’s initial nominee Judge Merrick Garland — cast a large shadow over Day 1 of the confirmation hearing for President Trump’s nominee, Judge Neil Gorsuch. But it took almost two hours for Garland to pop up on Day 2.

    Sen. Patrick Leahy, D-Vt., on Monday blasted Garland’s blockade by Senate Republicans, and he asked Gorsuch Tuesday what he thought about Garland and how the Obama nominee had been treated.

    Gorsuch said Garland, who is the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is someone he greatly admires and called him an “outstanding judge.”

    “Whenever I see his name attached to an opinion, it’s one I read with special care,” Gorsuch said.

    However, as to whether Garland should have been considered for the Supreme Court, Gorsuch sidestepped the question, saying that “I cannot get involved in politics.”

    — Jessica Taylor at 10:51 AM CDT

  • If Trump Had Asked About Roe V. Wade, Gorsuch Says He Would Have Walked Out

    In questioning by Sen. Lindsey Graham, R-S.C., Judge Gorsuch again reiterated he gave President Trump no guarantees on how he would rule on abortion rights, despite Trump’s campaign trail promise that views on abortion would be an important consideration for him in picking a justice.

    Gorsuch was blunt on what he would have done if Trump had broached that topic with him in his interview for the Supreme Court: “I would have walked out the door.”

    — Jessica Taylor at 11:07 AM CDT

  • Pressed On Trump Travel Ban, Gorsuch Says 'No Man Is Above The Law’

    Judge Neil Gorsuch testifies during the second day of his Supreme Court confirmation hearing before the Senate Judiciary Committee on Tuesday. Chip Somodevilla/Getty Images
     

    Judge Gorsuch was pressed by Sen. Patrick Leahy, D-Vt., about a matter he’s very likely to see before him if he is confirmed to the Supreme Court — President Trump’s controversial travel ban that bars people from six Muslim-majority countries from coming to the U.S.

    Gorsuch said he, of course, couldn’t get into the specifics of the ban, which has currently been temporarily halted by a federal trial court judge in Hawaii.

    “If you are asking about how to apply it to a specific case, I can’t talk about that for understandable reasons. You ask me to apply it to a set of facts that look an awful lot like a pending case in many circuits now,” Gorsuch said.

    But Gorsuch did agree that any religious test is unconstitutional based on the First Amendment and the Equal Protection Clause of the 14th Amendment.

    The Trump administration has claimed that the president has wide purview when it comes to making executive orders on national security, but Gorsuch said that such orders are reviewable. “No man is above the law,” Gorsuch said, pointing to the 1952 Youngstown Sheet & Tube Co. v. Sawyer decision, which did limit some executive powers in the case of steel seizure for national emergencies.

    — Jessica Taylor at 12:03 PM CDT

  • Durbin Tries To Tie Gorsuch To Steve King Comments

    After a brief 30-minute recess for lunch and Senate votes, the Judiciary Committee hearing is back in full swing with Senate Minority Whip Dick Durbin of Illinois up to grill Gorsuch.

    Durbin brought up Iowa GOP Rep. Steve King’s inflammatory tweet last week, where he tweeted the U.S. couldn’t be restored “with somebody else’s babies.”

    The connection Durbin was trying to make was to Gorsuch’s dissertation adviser at Oxford University, John Finnis, who has also made inflammatory statements about same-sex marriage. Durbin pointed to statements Finnis had made about the dropping birth rate in the United Kingdom.

    Gorsuch pointed out that he has not tolerated lawyers who make racist remarks in the past and has even reported them to the bar association for possible discipline. And he also reaffirmed that in same-sex marriage, the Supreme Court’s precedent stands.

    "The Supreme Court of the United States has held that single-sex marriage is protected by the Constitution,” Gorsuch said.

    — Jessica Taylor at 12:34 PM CDT

  • Gorsuch On ‘Frozen Trucker’ Case: I Applied The Law As Written

    Sen. Durbin also pressed Judge Gorsuch on a case that popped up several times Monday in Democratic senators’ opening statements: a dissenting opinion in which Gorsuch ruled against a trucker who lost his job after his truck broke down in freezing temperatures. He was instructed by his company to stay with the trailer, but as he was growing numb he left to find warmth. (NPR’s Nina Totenberg has more on the case). On Monday, Durbin slammed Gorsuch’s legal rationale for ruling against the trucker, saying that while it was 14 degrees below zero that night,  "but not as cold as your dissent, Judge Gorsuch." The majority of the 10th Circuit Court of Appeals found in favor of the trucker, Alphonse Maddin.

    Gorsuch admitted that the case was a difficult one for him, saying that it was “one of those you take home at night.” But he said he had to apply the law as written by Congress even if it was a “bad decision” and he stood by his interpretation that the trucker was at fault because he chose to operate the truck at the outset, and that he would have been protected if he had refused to operate the truck from the beginning.

    “My job isn’t to write the law; it’s to apply the law,” Gorsuch said.

    The Supreme Court nominee also said it was unfair to pull out that one decision — out of more than 2,700 he has decided — to paint him as too pro-business.

    “I can point you to so many where I’ve found for a worker in an employment action,” Gorsuch said.

    — Jessica Taylor at 12:58 PM CDT

  • Live blog: High court nominee faces daylong questioning in Senate

    The NPR politics team will live blog the Senate Judiciary Committee's hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. The live blog will include streaming video, with posts featuring highlights, context and analysis from NPR reporters and correspondents.

    President Trump's pick for the Supreme Court is testifying before the Senate Judiciary Committee on Tuesday. It is Day 2 of what is expected to be three days of hearings on Judge Neil Gorsuch's nomination. If confirmed, Gorsuch would fill the high court seat left vacant in February 2016, after the death of Justice Antonin Scalia.

    Gorsuch, 49, is currently a federal appeals court judge in Denver. His selection fulfilled an early campaign promise of Trump's to nominate a solidly conservative judge with a record of strictly interpreting the U.S. Constitution. Senators are expected to question him on a variety of social issues and legal doctrine, including his skepticism of the power of federal agencies.

    • Day 1: Republicans praise Gorsuch, Democrats decry Garland treatment

  • Gorsuch Clarifies Maternity Leave Question

    Judge Gorsuch was asked by Sen. Dick Durbin, D-Ill., about a young woman who alleged that Gorsuch asked students in a legal ethics class he taught to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby. (The student's allegation was reported by NPR here.) But Gorsuch said the student was mistaken about the question he asked during the class discussion. Gorsuch says the actual question he asked was a part of this lesson:

    “The problem is this: Suppose an older partner, woman at the firm that you're interviewing at, asks you if you intend to become pregnant soon. Your choice as a young person [is] you can say yes, tell the truth.... And not get the job and not be able to pay your debts. You can lie, maybe get the job...That's a choice, too, that's a hard choice. You can push back in some way, shape or form. And we talk about the pros and the cons in a Socratic dialogue so they can think through for themselves how they might answer that very difficult question. And senator, I do ask for a show of hands, not about the question you asked, but about the following question and I ask it of everybody: ‘How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning.’ And I am shocked every year, senator, how many young women raise their hand. It’s disturbing to me.”

    Gorsuch said his mother, lawyer and former EPA Administrator Anne Gorsuch Burford, had to wait a year to take the bar exam because of her gender, and also pointed to former Supreme Court Justice Sandra Day O'Connor, who he said first worked as a legal secretary because no law firm would hire her as an attorney. And Gorsuch thanked Sen. Durbin "for the opportunity to clarify that."

    Brian Naylor at 1:12 PM CDT

  • Gorsuch Defends Textualism: It’s About Due Process, Avoiding ‘Armies Of Lawyers’

    Questioned by Sen. John Cornyn, R-Texas, about his judicial philosophy, Judge Gorsuch explained that his belief in sticking strictly to the text of the law — as opposed to trying to divine intent — is about due process.

    “Before I put a person in prison, before I deny someone of their liberty or property, I want to be very sure that I can look them square in the eye and say, ‘You should have known,’” Gorsuch said.

    But he also linked it to making sure that common, non-wealthy Americans have access to the judicial system.

    “I don’t want to have to say, ‘How am I supposed to tell? I need an army of lawyers to figure that out,” he said. “Some people can afford armies of lawyers. Most Americans can’t.”

    While many Americans may not particularly care about phrases like “textualism” and “strict constructionist,” that populist framing of judicial philosophy may help Gorsuch to win over people watching Tuesday’s hearing (perhaps Trump supporters in particular). One more factor working in his favor, fully 38 percent of Americans believe lawyers have “low” or “very low” levels of “honesty and ethical standards,” according to Gallup. Meanwhile, only 18 percent say “high” or “very high.” (Incidentally, that puts lawyers just below journalists…but well above members of Congress.)

    Danielle Kurtzleben

  • Longing For A Simpler Confirmation Process

    Sen. Sheldon Whitehouse, D-R.I., pressed Judge Gorsuch on the high court’s 2010 Citizens United decision, which allows corporations to make unlimited independent expenditures for political causes. Gorsuch said it was up to Congress to change the law if it wishes to outlaw such contributions, a prospect Whitehouse thought highly unlikely.

    He then asked Gorsuch his thoughts about what Whitehouse sees as an outgrowth of that decision, a "10 million dollar" political campaign to lobby the Senate to approve Gorsuch.

    Gorsuch said there was much about the process that he regretted.

    "When Byron White sat here, it was 90 minutes," Gorsuch said. "He was through this body in two weeks and he smoked cigarettes while he gave his testimony."

    While there is definitely no smoking in the Capitol these days, Gorsuch's nomination is expected to be voted on by the full Senate almost as quickly, although almost certainly not by voice vote as White’s was.

    — Brian Naylor at 1:57 PM CDT

  • Of Course David Foster Wallace Came Up In A Supreme Court Confirmation Hearing

     
    Author David Foster Wallace reads selections of his writing during the New Yorker Magazine Festival in New York in 2002. (Keith Bedford/Getty Images)
     

    Describing the place of “rule of law” in society, Judge Gorsuch said that it’s easy to forget that it exists because it’s so constant in the U.S.

    “I think sometimes really in this country, we’re kind of like David Foster Wallace’s fish. He wrote about a fish swimming in an aquarium. And it spends so much time in water and it’s surrounded by it, the fish doesn’t even realize it’s in water. … The rule of law in this country is so profoundly good compared to anywhere else in the world that we can complain and know that we’re protected because of the rule of law, I think we’re a little bit like David Foster Wallace’s fish. We’re surrounded by the rule of law. It’s in the fabric of our lives — so much so we kind of take it for granted.”

    Here’s the anecdote that he was referring to, from Wallace’s well-known 2005 commencement address at Kenyon College:

    There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, "Morning, boys. How's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, "What the hell is water?"

    Gorsuch was responding to a line of questioning about whether he has been too hard on the “little guy” in his judicial decisions. He used the fish anecdote to illustrate what he characterized as the U.S.’s commitment to protecting all people equally, which he called “the most radical guarantee I’m aware of in the history of human law.”

    Any Gorsuch skeptics may be particularly interested in exactly how much he’d be willing to disagree with the president in upholding that rule of law. Many of Trump’s critics have claimed that the president is a threat to the rule of law, due to his attacks on the judiciarythe press and his political opponents.

    — Danielle Kurtzleben

     

  • No Commitment On Cameras In The Court

    As he has with most other issues that may come before the Supreme Court, Judge Gorsuch deftly sidestepped a query from Sen. Amy Klobuchar, D-Minn., about whether cameras should be permitted in the high court’s oral arguments. The Supreme Court has to date refused the intrusion, although it does release audio of its arguments.  

    Gorsuch called it "a very important question," although he confessed it's not one he's given a great deal of thought.

    "I've experienced more cameras in the last few weeks than I have in my whole lifetime," Gorsuch observed. But pressed, Gorsuch would commit only that he would "treat it like any other case....I would want to hear the arguments."

    — Brian Naylor

     

  • #SCOTUSbladder

     

    A moment of levity as Sen. Ben Sasse begins his questioning of Judge Gorsuch. The Nebraska Republican read off a question from his wife that she just had to know about the Supreme Court nominee: "How in the world is Gorsuch able to go so many hours at a time without peeing?"

    (We’re on Hour 7 of today’s hearing, and the committee has taken only two breaks).

    "The SCOTUS bladder is something the country stands in awe of,” Sasse said to guffaws in the room as Gorsuch chuckled.

    — Jessica Taylor
     
  • Franken Goes On The Attack, And Gorsuch Coolly Dodges

     
    Democratic Sen. Al Franken listens to Supreme Court nominee Neil Gorsuch testify on the second day of his confirmation hearing. (Tom Williams/CQ Roll Call via Getty Images)
     

    The “frozen trucker” case came up once again on Tuesday, when Minnesota Sen. Al Franken questioned Judge Gorsuch. This is a 10th Circuit case about Alphonse Maddin, a trucker who was fired for abandoning his trailer to seek warmth in extremely cold weather. The U.S. Court of Appeals for the 10th Circuit found in favor of Maddin, but Gorsuch dissented.

    Sen. Dick Durbin, D-Ill., also questioned Gorsuch about the case on Tuesday, and as NPR’s Nina Totenberg has reported, the case has been a focal point of Democrats’ arguments against Gorsuch.

    Though the case had been discussed earlier, Franken went through the facts again and tried to get Gorsuch to say what he would have done in Maddin’s situation. Gorsuch eventually said he didn’t know.

    Franken’s aggressive inquiry included several more pointed questions, including how Gorsuch felt about the way Obama Supreme Court nominee Merrick Garland “was treated by the Republican senators,” about Gorsuch’s views on same-sex marriage and about how White House Chief of Staff Reince Priebus has characterized Gorsuch as a part of President Trump’s political agenda.

    As with the conversation about the frozen trucker, the line of questioning became more an exercise in the Minnesota Democrat making points than in Gorsuch providing new information in his answers. As Supreme Court nominees often do (and as Gorsuch did earlier in the day), the judge dodged or demurred on many of the questions Franken asked.

    — Danielle Kurtzleben 

  • Gorsuch Questioned About Book On Physician-Assisted Suicide

     
    Sen. Chris Coons, D-Del., was the first to ask Judge Gorsuch about physician-assisted suicide — which he literally wrote the book on.
     
    Gorsuch published The Future of Assisted Suicide and Euthanasia in 2006, the same year that President George W. Bush nominated him to the federal bench. As NPR’s Nina Totenberg wrote earlier this month, in the book Gorsuch says that “human life is fundamentally and inherently valuable” and “the intentional taking of human life by private persons is always wrong.” Though some have tried to take hints on how he would rule on abortion legislation from the book, Totenberg notes that Gorsuch “describes the court's decisions on abortion in a straightforward way, without adding almost anything in the way of a personal opinion”:
     
    “The book, academic in tone but lucid in presentation, concludes that there is no necessary connection between the right to abortion and a right to assisted suicide. It does, however, quite clearly subscribe to the notion, adopted in most state laws, that individuals have the right to hasten their own deaths by refusing nutrition, water or medical treatment.”
     
    Gorsuch reiterated that he wrote the book as a commentator, not as a judge, and said that the question as to “whether you should also have an additional right to have someone kill you” is a difficult one and that “there are good arguments on both sides of the ledger.” But, ultimately, he said in the book he concluded that as to medically assisted suicide, he had concerns about “what legalization might mean for the least among us,” namely disabled and elderly people who might be pressured into that option because it’s cheaper than the continuing care they would otherwise need.
     
    — Jessica Taylor
  • An Important Query: Ducks Vs. Horses

    Some of the GOP senators’ questions for Gorsuch have been more head-scratchers than hardballs. Take this exchange between the judge and Sen. Jeff Flake of Arizona:

     

    — Jessica Taylor

  • Trump Lamented Colorado Loss In Gorsuch's Interview

    Judge Gorsuch testified today that during his interview with the president, Trump lamented losing his Supreme Court nominee’s home state of Colorado. Gorsuch added that Trump said he would have won the state if he had spent more time there; he lost Colorado by about 5 percentage points, or more than 136,000 votes.

    It’s not a surprising revelation, given that ever since taking office Trump has kept reliving his unlikely win last November — boasting about how many electoral votes he got despite being underestimated, claiming without evidence that he would have beaten Democratic nominee Hillary Clinton in the popular vote if not for millions of illegal voters, and continuing to hold campaign rallies just months into his term.

    Gorsuch’s description of the exchange came as Connecticut Sen. Richard Blumenthal pressed the nominee yet again on whether he had made promises to the president about ruling on abortion. Gorsuch said Trump “said abortion was very divisive” during the campaign “and then he moved on to other topics,” reiterating he had not asked him specifically how he would rule on the issue.

    — Jessica Taylor

  • Gorsuch Would Add To Court's Geographic Diversity

    Neil Gorsuch is a white man, but he would still add diversity to the Supreme Court if confirmed. As Arizona Republican Sen. Jeff Flake pointed out on Tuesday, Gorsuch will bring geographic diversity.

    All eight current justices were born in coastal states, and only two (Anthony Kennedy and Stephen Breyer) were born west of the Mississippi. Gorsuch was born in Denver (though he moved with his mother, a Reagan-era head of the Environmental Protection Agency, to the Washington, D.C., area as a teenager).

    Gorsuch has been serving on the 10th Circuit Court of Appeals in Denver for more than a decade, and his Western-ness was a repeated theme in his Tuesday testimony: Ted Cruz asked him about mutton-busting, Flake asked him about trout fishing, and Gorsuch at another point talked about his love of skiing.

    One other area in which he would broaden the court’s demographics: Gorsuch — an Episcopalian — would be the lone Protestant on the court if confirmed, as Nina Totenberg reported. (However, things are more complicated here than they seem. As CNN’s Daniel Burke reported, Gorsuch grew up Catholic, and people baptized in the Catholic Church are still considered Catholics even if they move to different denominations. In addition, the Episcopal Church is often described as being somewhere between Protestant and Catholic.)

    One area where he wouldn’t add any diversity: his Ivy League law degree. All eight current justices have law degrees from Ivy League schools. Gorsuch received his from Harvard.

    — Danielle Kurtzleben

  • Gorsuch Bemoans Attacks On Judiciary, But Dances Around Trump Comments

     
    Gorsuch was asked by Sen. Richard Blumenthal, D-Conn., about President Trump’s history of lashing out at the judiciary when handed rulings he disagrees with. The president called the judge who ruled against his first travel ban a “so-called judge” in a tweet and said during the campaign that an American-born judge of Mexican heritage couldn’t fairly rule on a suit against Trump University because of Trump’s proposed border wall.

    Gorsuch declined to speak about Trump’s comments specifically, saying he couldn’t “talk about specific cases or controversies that might come before me, and I can’t get involved in politics,” but he made clear that he has great respect for his fellow men and women on the bench and the difficult and demanding jobs they have.

    “Judges have to be tough. You get called lots of names, all over the place,” Gorsuch said. “We have to accept criticism with some humility. It makes us stronger and better.”

    And again, while Gorsuch wasn’t commenting about Trump’s statements specifically, he was clear that he was troubled by any attack on the legitimacy of the judiciary — no matter who says it.

    “When anyone criticizes the honesty or integrity, the motives of a federal judge, I find that disheartening. I find that demoralizing because I know the truth,” Gorsuch said.

    Blumenthal pressed him on whether “anyone” would include the president, to which the judge responded that “anyone is anyone” and harked back to his comments earlier in the day that no one is above the law — not even the president.

    The White House pushed back on the characterization in media reports that Gorsuch was commenting directly on Trump’s remarks.

    And while that is technically true, Gorsuch’s broad comments suggest that he is troubled by anyone who attacks the judiciary — which would encompass the president’s past statements and tweets.

    Hawaii Democratic Sen. Mazie Hirono later tried to clarify whether Gorsuch was “merely speaking broadly,” NPR’s Danielle Kurtzleben reports. Gorsuch responded, “I don’t think I was merely speaking broadly, senator.” He later clarified, “Senator, I’m speaking about anyone.”

    — Jessica Taylor

     

  • Gorsuch Hearing For Top Court Lacks The High Drama Of Those In Recent Past

    Neil Gorsuch kept an even keel throughout the day, rarely betraying more than a hint of impatience or pique. He smiled a lot, made jokes about family and matched the mood of each of his interrogators.
  •  

    Gorsuch Day 2 recap: Not even the most interesting thing on Capitol Hill  

    As Day 3 of the hearing for Supreme Court nominee Neil Gorsuch begins, questions by the Senate Judiciary Committee so far have lacked the drama of past Supreme Court hearings.

    In fact, the Gorsuch hearings are maybe the third most compelling story on Capitol Hill right now -- after intrigue over whether or not the GOP Obamacare replacement plan, the American Health Care Act, will pass in the House on Thursday, and lingering questions from FBI Director James Comey’s testimony on Monday that the agency is, in fact, investigating possible ties during the 2016 election season between Trump’s campaign and Russia. The fact that a rarity like a Supreme Court nominee’s confirmation hearing is probably the third most interesting story of the day speaks to the craziness in Washington right now.

    Here’s some thoughts on Tuesday from NPR’s Ron Elving:

    The proceedings simply did not live up to the expectations of those who witnessed the battles over high court nominees in each of the past five presidencies — some of which made for high drama, indeed.

    To some degree, this was testament to Gorsuch's own temperament. He kept an even keel throughout the day, rarely betraying more than a hint of impatience or pique. He smiled a lot, made jokes about family and matched the mood of each of his interrogators.

    Ever hear of "mutton busting?" Gorsuch explained it was bronco busting for kids (they hang on to handfuls of wool on the backs of sheep). We heard more than once about how, at the age of 9, he was walking precincts for his politician mother. And then there were those games of HORSE the Supreme Court clerks played with Justice Byron White...

    But there were also sober exegeses about sending people to federal prison "for a long, long time" and the sanctity of human life at all stages and the prime importance of limiting the reach of the federal government.

    By day's end there were surely those who had been charmed and won over by the mixture of erudition and aw shucks. But there were also those who heard legal theories and attitudes akin to those of current Justice Samuel Alito and Chief Justice John Roberts.

    Jessica Taylor

    by Sara Porter, MPR News edited by Nancy Yang, MPR News 3/22/2017 2:16:16 PM
  • Klobuchar, Franken question Supreme Court nominee Gorsuch

    On day two of Neil Gorsuch's Supreme Court confirmation hearings, Minnesota Sens. Amy Klobuchar and Al Franken were up to question the nominee.
  • Gorsuch says he'll consider cameras in courtroom

    Senate Judiciary Chairman Charles Grassley is pushing Supreme Court nominee Neil Gorsuch to support putting cameras in the courtroom.

    Several members of the committee have sponsored legislation to place cameras in the Supreme Court. Grassley says it would provide Americans with more access to the court and promote a better understanding.

    But many Supreme Court justices have opposed the idea.

    Asked about the issue Tuesday, Gorsuch said he'd have an open mind. He reiterated that promise to Grassley on Wednesday, saying he'd gotten to know many photographers since he'd been nominated and they're "nice folks."

    Grassley joked that former Justice David Souter had said he'd allow cameras in the court over his dead body.

    But Grassley noted that Souter is "not on the courts now, so that's one less person."

    Associated Press

  •  

    Gorsuch on originalism: Founders were racist and sexist, but still promised equal protection

    Judge Neil Gorsuch testifies during the third day of his Supreme Court confirmation hearing before the Senate Judiciary Committee. Justin Sullivan/Getty Images

    California Democratic Sen. Dianne Feinstein, the ranking member on the Judiciary Committee, pressed Judge Neil Gorsuch on his views on originalist judicial philosophy, and how it would influence his decisions.

    Beginning the line of questioning with looking at the Equal Protection Clause of the 14th Amendment, Feinstein wanted to know if Gorsuch would apply that key constitutional provision differently, particularly on issues of gay rights and abortion rights, because of the prevailing views on race and gender at the time that law was drafted and enacted.

    “It matters not a whit that some of the drafters of the 14th Amendment were racist — because they were, or sexist — because they were,” Gorsuch said. “The law they drafted promises equal protection of the law to all persons.”

    On abortion, Gorsuch acknowledged the precedent set by the Supreme Court, and promised Feinstein that, “No one is looking to return us to horse-and-buggy days. We’re trying to interpret the law faithfully, taking principles that are enduring in a Constitution that is meant to last ages and apply it and interpret it to today’s problems.”

    “I want your daughters to have every opportunity they could possibly have,” Feinstein said, referencing his teenagers. Gorsuch responded that, “I come from a family of strong women.” His mother,  Anne Gorsuch Burford, was a Colorado state representative who was appointed by President Reagan to be the first female head of the Environmental Protection Agency.

    Feinstein, however, wasn’t impressed with his roundabout answers on abortion and the high court’s prior decisions on the controversial topic.

    “For the life of me, I really don’t know when you’re there, what you’re going to do with it,” the California Democrat said. “And, as you say, this isn’t text. This is real life. And young women take everything for granted today, and all of that could be struck out with one decision.”

    Gorsuch reiterated that he couldn’t give any hint on how he would rule on any specific matter: “Senator, I can’t promise you how I would look at a particular case. That would be deeply wrong.”

    Jessica Taylor and Danielle Kurtzleben

    by Sara Porter, MPR News edited by Nancy Yang, MPR News 3/22/2017 3:06:52 PM
  •  

    Graham lectures Democrats on Gorsuch: Confirmation process has ‘become a joke’

    Sen. Lindsey Graham, R-S.C., had some direct words for his colleagues across the aisle -- confirming Judge Gorsuch shouldn’t be a partisan matter and the way the Supreme Court nominee was being grilled by Democrats was a stain on the Senate.

    “All I’m saying is, if we’re going to vote against a nominee because they won’t tell us things that we want to hear about issues important to us, then the whole nominating process has become a joke….I think we’re doing great damage to the judiciary by politicizing every nomination,” Graham said.

    “I would say that the way you judge has been viewed by people above you as being acceptable, almost all the time but once,” he added, addressing Gorsuch directly. “What more can you ask for? What are you looking for?”

    Graham continued that if Democrats are “looking for somebody that will make your political life easy” Gorsuch isn’t that guy because he was nominated by a Republican president. But, he pointed out, that he voted for the liberal justices President Obama nominated, Justices Sonia Sotomayor and Elena Kagan, because they were qualified, not because of who they were nominated by or whether he agreed with their judicial philosophy. Graham noted in his comments Tuesday he was threatened with a primary back home because of some of his votes. (He easily won that primary challenge).

    “He’s not going to make your political life easy because he’s appointed by the guy that you were all against and didn’t vote for. I haven’t voted for a president who won in 12 years,” Graham laughed, since he refused to vote for President Trump.

    But as he continued on, Graham got even more agitated about the Democratic treatment of Gorsuch and the “double standard” they’re applying.  

    “... [A]pparently it is okay for you to slander this man, and none of you say a damn thing about it. I don’t think it’s okay. I don’t like what is going on here. I don’t like where the Senate is heading,” Graham lamented. “But there is nothing I can do about it other than be myself.”

    — Jessica Taylor 

    by Sara Porter, MPR News edited by Nancy Yang, MPR News 3/22/2017 3:35:21 PM
  •  

    In personal exchange, Feinstein questions Gorsuch on assisted suicide

    Sen. Dianne Feinstein, D-Calif., and Judge Gorsuch had a personal exchange in Wednesday’s hearing, discussing their personal experiences with family members’ end-of-life issues.

    Feinstein asked Gorsuch where he stood on assisted suicide, particularly California’s End of Life Option Act. That law allows a patient to obtain life-ending drugs, provided that two doctors agree that that patient has fewer than six months to live, as KQED’s Lisa Aliferis reported last year.

    Feinstein referenced the death of her father and “trying to save him.”

    “There are times you can’t, and the suffering becomes so pronounced,” she said, adding, “I just went through this with a close friend. This is real, and it’s very hard.”

    Gorsuch responded with his own anecdote.

    “We’ve all been through it with family. And my heart goes out to you. It does. And I’ve been there with my dad.” Here he paused briefly, appearing pained. “And others, and at some point you want to be left alone. ‘Enough with the poking and the prodding. I want to go home and die in my own bed in the arms of my family.’”

    Gorsuch added that he agrees with the Supreme Court’s decision in Cruzan v. Director, Missouri Department of Health. That 1990 decision centered around Nancy Cruzan, a woman in a vegetative state after a car accident, and her parents’ desire to remove her feeding tube after she had been in that state for several years. The New York Times summarized the decision in a 1990 obituary for Cruzan:

    “In a 5-to-4 decision in the Cruzan case in June, its first ruling on the right to die, the Supreme Court recognized such a right, but said Missouri could stop the Cruzans from withholding food and water from their daughter unless there was ‘clear and convincing’ evidence that she would have wanted to die.”

    While Gorsuch has been able to sidestep specificity on many topics so far during his hearing (a point on which Feinstein chided him), his 2006 book on assisted suicide provides a window into his views on the topic.

    “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong,” he wrote, according to a summary by the Washington Post’s Derek Hawkins.

    Gorsuch did allow in that book that a patient has a right to die, but was particular about the circumstances in which such a death would be acceptable, Hawkins wrote, saying that Gorsuch “envision[ed] a legal system that allows for terminally ill patients to refuse treatments that would extend their lives, while stopping short of permitting intentional killing.”

    Referencing his book, Gorsuch on Wednesday further explained the nuance to his beliefs on the right to die.

    “Senator, the position I took in the book on that was anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death. Not intentionally but knowingly. Okay?” he said. “I drew a line between intent and knowingly. And I have been there. I have been there."

    — Danielle Kurtzleben

    by Sara Porter, MPR News edited by Nancy Yang, MPR News 3/22/2017 3:54:19 PM
  •  

    Gorsuch sidesteps questions on 'dusty' emoluments clause

    Judge Gorsuch was pressed by Sen. Patrick Leahy, D-Vt., about a clause in the Constitution that hasn’t received much attention until now -- the Emoluments Clause, which has received new scrutiny amid questions about whether President Trump is profiting from foreign governments via his business interests.

    As NPR’s Ailsa Chang explored last year: “The Foreign Emoluments Clause can be found in Article I, Section 9 of the Constitution. It provides that ‘no Person holding any Office of Profit or Trust under [the United States] shall, without Consent of Congress, accept ... any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.’”

    Gorsuch admitted that this particular part of the Constitution hadn’t gotten much -- or really, any -- scrutiny until now, having “sat in a rather dusty corner.”

    The nominee explained that “it prohibits members of the government of this country from taking emoluments -- gifts from foreign agents," but wouldn’t elaborate beyond that citing possible pending litigation before the federal courts on the issue.

    Leahy pressed him, saying he wouldn’t decline to talk about other pertinent constitutional provisions which may be part of a multitude of pending decisions, but Gorsuch wouldn’t bite.

    “I am hesitant to discuss any part of the Constitution to the extent we're talking about a case that's likely to come before a court, pending or impending," Gorsuch said.

    — Jessica Taylor 

    by Sara Porter, MPR News edited by Nancy Yang, MPR News 3/22/2017 4:42:31 PM
  • Supreme Court ruling puts Gorsuch on hot seat about education of students with disabilities

     

    Republican Sen. Chuck Grassley of Iowa quizzed, or rather praised, Gorsuch about his decision in a 2008 case about the standard of school accommodations for an autistic student. And at roughly the same time, the Supreme Court unanimously rejected the legal standard used by the U.S. Court of Appeals for the 10th Circuit, which Gorsuch has sat on as an appellate judge for more than a decade.

    The Individuals with Disabilities Education Act (IDEA) and case law require public schools provide an education “reasonably calculated” to accommodate a student’s abilities, or compensate them for an education in another facility. In the case heard before Gorsuch, he ruled that the IDEA required “educational benefit mandated by IDEA must merely be more than de minimis,” and that a family of an autistic boy was not entitled to payment for private education when they were seeing little progress in the public education program.

    When asked by Grassley, Gorsuch said he was by law required to balance the interests of the family and the school district. He interpreted the law as it was written, Gorsuch said, but the drafting of the law was a “policy judgment.”

    In a slip opinion released Wednesday morning, the Supreme Court unanimously rejected the legal standard applied by Gorsuch on a similar case. Chief Justice Roberts, writing for the court, said “it cannot be right” that this law requires only “more than de minimis” educational benefit. The education program, the chief justice wrote, “must be appropriately ambitious in light of [a student’s] circumstances.”

    Democratic Sen. Dick Durbin of Illinois had the opportunity to ask Gorsuch about the Supreme Court decision overruling him. 

    "Why, why in your early decision, did you want to lower the bar so low to merely more than de minimis as a standard for public education to meet this federal requirement under the law?" Durbin asked.

    Gorsuch went on to say, “If anyone is suggesting that I like a result where an autistic child happens to lose — that's a heartbreaking accusation to me." Gorsuch said that he was bound by the 10th Circuit’s precedent, a 1996 case that set the standard for reviewing IDEA claims in that court.

    “I was wrong, Senator,” Gorsuch said, acknowledging the Supreme Court’s Wednesday decision. “I was wrong because I was bound by circuit precedent. And I’m sorry.” 

    — Lauren Russell

  • Gorsuch defends philosophy: ‘Backward doesn't mean backwards’

    Judge Gorsuch explained on Wednesday why he believes “the law is not hostile to social progress,” as Sen. John Cornyn, R-Texas, had put it in a question.

    “Backward doesn’t mean backwards, senator,” he said. “The role of the judge is to say what the law is.”

    “We’re saying this is what the law is, this is what it means, which is that it meant at the time that you committed your crime,” he said. “That’s backward-looking. That’s what I mean by backward-looking.”

    The question of looking “backward” had come up earlier on Wednesday, when Sen. Dianne Feinstein, D-Calif., had expressed concern that originalism, a judicial philosophy favored by Gorsuch, would mean taking rights away from women.

    “If one looks at originalism in my context, which is real life, I want your two daughters to have every opportunity they possibly could have, be treated equal, be able to control their own bodies in concert with their religion, their doctor, whatever it may be, and not be conscribed to a lesser fate because the law is interpreted in a backward sense,” she said.

    Gorsuch responded that “no one is trying to return us to horse and buggy days.”

    Gorsuch’s “backwards” response to Cornyn came as an easy answer to an easy question from a friendly senator, but the exchange helps to sum up the clash between Congress’ liberals and conservatives when it comes to judicial philosophy. Conservatives have often accused liberal justices of being “activists.”

    Gorsuch has multiple times in his confirmation hearing stressed that, as a judge, he does not make law, saying that that is Congress’ job.

    — Danielle Kurtzleben

  • Supreme Court pick parries Democrats' attacks on last day



    WASHINGTON (AP) — On a glide path toward confirmation, Supreme Court nominee Neil Gorsuch parried fresh attacks from Democrats Wednesday on abortion and special education, insisting that "when you put on the robe, you open your mind" as he faced a final day before the Senate Judiciary Committee.
     
    Frustrated Democrats, unable to get much out of the Denver-based appeals court judge over 11 hours of questioning a day earlier, suggested they might not vote to confirm him later this month. Regardless, Senate Majority Leader Mitch McConnell has made clear this week that he will see that Gorsuch is confirmed on way or another in the GOP-controlled Senate.
     
    Sen. Dianne Feinstein of California, top Democrat on the Judiciary Committee, gave voice to widespread Democratic complaints Wednesday about Gorsuch, President Donald Trump's pick for the high court.
     
    Gorsuch has said repeatedly that he would adhere to the rule of law and respect the independence of the judiciary, but he has refused to address specifics on any number of issues, from abortion and guns, to allowing cameras in the courtroom, to the treatment of the federal judge nominated last year to the Supreme Court vacancy but denied a hearing by Republicans.
     
    "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."
     
    Gorsuch repeated his general commitments to adhering faithfully to precedent, the law and independence.
     
    "I care about the law, I care deeply about the law and an independent judiciary and following the rules of the law," he told Feinstein. "And that's the commitment I can make to you, I can't promise you more and I can't guarantee you any less."
     
    Feinstein pressed Gorsuch on the issue of abortion and the possibility the Roe v. Wade decision legalizing it could be overturned: "This is real life, and young women take everything for granted today and all of that could be struck out with one decision."
     
    Gorsuch replied, "All I can promise you is that I will exercise the care and consideration, due precedent, that a good judge is supposed to."
     
    The hearing took place against the backdrop of the turmoil of Trump's young presidency. Democrats including Senate Minority Leader Chuck Schumer are demanding a pause in Gorsuch's nomination pending the FBI investigation of alleged ties between Trump's presidential campaign and Russia. Judiciary Chairman Chuck Grassley of Iowa dismissed that as "ridiculous," and McConnell told The Associated Press: "Gorsuch will be confirmed. I just can't tell you exactly how that will happen yet."
     
    For Republicans, Gorsuch's nomination is a bright spot that could go far to compensate for Trump's various other missteps and misstatements.
    "I think President Trump, with all of his problems and all of his mistakes, chose wisely when it came to this man," Sen. Lindsey Graham, R-S.C.., declared at Wednesday's hearing.
     
    Under questioning from Graham, Gorsuch repeated statements he'd made publicly for the first time Tuesday, that he was "disheartened" and "demoralized" by Trump's attacks on the judiciary, including the federal judges who blocked the president's refugee travel ban.
     
    And when Sen. Patrick Leahy, D-Vt., pressed him on whether the president could ignore a court order, Gorsuch replied: "You better believe I expect judicial decrees to be obeyed."
     
    Gorsuch, 49, has spent more than a decade on the 10th U.S. Circuit Court of Appeals in Denver, and would fill the 13-month vacancy on the high court created by the death of Antonin Scalia last year.
     
    The confirmation hearing will wrap up with a panel of outside witnesses talking about Gorsuch, before a committee vote expected April 3 and a Senate floor vote later that same week. Republicans control the Senate 52-48 so would require eight Democrats to move Gorsuch past procedural hurdles, and thus far no Democrat has said they will support the judge. But McConnell could also change Senate rules to confirm Gorsuch with a simple minority, and appears prepared to take that step.
     
    As Wednesday's hearing began, Grassley raised an opinion Gorsuch had written related to special education programs at public schools.
     
    Shortly after that exchange, in an odd coincidence, the Supreme Court handed down an opinion in a separate but related case that unanimously overturned Gorsuch's reasoning. The high court said that public schools that offer special education programs must meet higher standards in educating learning-disabled students.
     
    Questioned by Sen. Richard Durbin, D-Ill., Gorsuch said he'd only just been given the Supreme Court ruling on the way to the bathroom, and he defended his earlier opinion, saying he was following earlier Supreme Court and 10th circuit cases.
     
    But Durbin suggested Gorsuch had gone further than what was required and lowered the bar for public schools to comply with the federal law on special education.
     
    "Why in your early decision did you want to lower the bar so low?" Durbin asked
     
    "I was wrong senator, I was wrong because I was bound by circuit court precedent," Gorsuch said. "And I'm sorry."
     
    --Associated Press
     
  • Rare Bipartisan Agreement: Senators Want Cameras In Supreme Court

     

    Republican and Democratic senators haven’t agreed on much during days of confirmation hearings for Judge Gorsuch, but there has been one bipartisan issue of accord — urging the Supreme Court to televise its proceedings.

    "I believe that public access to our court system is an important issue,” Judiciary Committee Chairman Chuck Grassley told Gorsuch Wednesday morning, urging him to keep an open mind on the issue.

    Minnesota Democratic Sen. Amy Klobuchar pushed Gorsuch on the idea Tuesday, and the nominee said he hadn’t given it much thought before. She raised it again Wednesday in her questioning. She and Grassley have co-sponsored a bill they reintroduced last week to require cameras at the Supreme Court.

    Texas Sen. John Cornyn also weighed in to support cameras at the Supreme Court, telling Gorsuch that they "would be enlightening and educating.” He pointed to the C-SPAN cameras in the Capitol now that allow for a wide broadcast of congressional proceedings.

    The issue of cameras in the high court has been a sticky one in the past. As of now, the court only releases audio of its arguments and decisions, but that is delayed. Former Justice David Souter said 20 years ago that he would let cameras in the Supreme Court “over my dead body.” Souter is still alive, but he retired in 2009.

    But as CNN noted, other current justices on the court remain opposed to the introduction of cameras as well. Justice Anthony Kennedy said in 2008 that it would bring an “insidious dynamic” to a “collegial court” and encourage justices to use sound bites. Justice Sonia Sotomayor has said that cameras could give attorneys and justices a “temptation to use [the court] as a stage rather than a courtroom.”

    recent C-SPAN survey found that 76 percent of voters believed that the Supreme Court should televise its oral arguments.

    — Jessica Taylor

  • What The Fox News Sexual Harassment Case Has To Do With The Gorsuch Hearing


    Former Fox News anchor Gretchen Carlson’s sexual harassment suit against former CEO Roger Ailes was settled in September, but it became a focus of Minnesota Sen. Al Franken’s questions for Neil Gorsuch on Wednesday.

    “[Ailes] tried to force it into private arbitration because of an arbitration clause in [Carlson’s] employment contract,” Franken said. “Even worse, the arbitration clause also prohibited her from speaking out about the claims, as is the case in most employment arbitration agreements.”

    Carlson’s contract with Fox News had a mandatory arbitration clause in it, which keeps disputes from being resolved in court and instead (as the name suggests) requires that they be resolved through arbitration. Carlson’s lawyers argued that she was legally allowed to sue Ailes personally, as opposed to Fox News as an organization.

    Franken warned that her case is a cautionary tale about the dangers of mandatory arbitration.

    “By coercing women to remain silent about illegal behavior, the employer is able to shield abusers from true accountability and leave them in place to harass again,” Franken said, quoting Carlson.

    Franken said that the Federal Arbitration Act, enacted in 1925, was passed to apply to “business to business” issues, implying that it is not being applied as originally intended. Gorsuch responded that lawmakers could “revise or eliminate” the act.
    Carlson has joined Franken and other Democrats in promoting a bill that would curb mandatory arbitration agreements.

    As for how the law stands right now, SCOTUSblog’s Edith Roberts recently provided some clarity on Gorsuch’s views on the topic, writing that he looks likely to rule similarly to how the late Justice Antonin Scalia ruled — that is, to be more a proponent than an opponent of the practice:

    “Recent Supreme Court rulings interpreting the scope of the Federal Arbitration Act have had significant implications in consumer protection, labor, and class action contexts. Justice Antonin Scalia was the prime mover in many of these cases, writing majority opinions in several 5-4 rulings that divided along ideological lines. These rulings, on balance, read the FAA as both trumping state consumer protection law and overriding the ability of class action plaintiffs to pursue collective lawsuits in the courts. Although the U.S. Court of Appeals for the 10th Circuit, on which Judge Neil Gorsuch has served since 2006, does not see many arbitration cases, a look at the arbitration rulings Gorsuch has made there suggests that he is likely to continue the trend on the court in favor of FAA pre-emption.”
     
    — Danielle Kurtzleben
  • Gorsuch's 'Bigly' Slip

    Judge Neil Gorsuch testifies during the third day of his Supreme Court confirmation hearing before the Senate Judiciary Committee. (Justin Sullivan/Getty Images)

    Throughout three days of hearings, Judge Neil Gorsuch has tried to separate himself from the man who nominated him to the Supreme Court, saying he wouldn’t be afraid to rule against President Trump in court and that he wouldn’t be a Republican or a Democratic judge.

    But on Wednesday he made an inadvertent slip of the tongue, using one of Trump’s favorite campaign phrases — “bigly” (or “big league,” as Trump has clarified one of his oft-used adverbs).

    The funny phrasing came when Nebraska GOP Sen. Ben Sasse was asking Gorsuch about the role of the Declaration of Independence in interpreting the Constitution. Gorsuch began talking about the Declaration’s signatories, saying that John Hancock had signed his name so “bigly.”

    Gorsuch tried to correct himself by saying “big and boldly,” but Sasse wasn’t about to let it pass, as the room burst into laughter.

    “And I just won five bucks,” the senator said, laughing.

     

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