Beginning on March 20, 2017, the Senate Judiciary Committee held four days of hearings on the nomination of Tenth Circuit Court of Appeals Judge Neil Gorsuch to the Supreme Court. Senators of both parties made clear the enormous consequences of whether the Senate decides to confirm the nomination. The Court is now split 4-4 on a number of issues, such as workers’ ability to organize into unions and women’s rights to obtain reproductive health care despite religious objections by non-profit employers. The 5-4 Roberts Court that included Justice Scalia has done tremendous damage by overruling a key part of the Voting Rights Act, unleashing a flood of corporate and other big money that has already distorted elections and our democracy, empowering corporations to deprive consumers of effective remedies for corporate fraud and other misconduct, consistently ruling against workers and victims of discrimination, and many more. Would a Justice Gorsuch re-form the damaging Roberts Court 5-4 majority? Will he work to overrule the few but important good Court decisions that protect reproductive, LGBTQ, and other rights and stand up against Presidential abuses of power? Will he seek to uphold the dangerous policies already being pursued by President Trump? Even before Gorsuch’s nomination, many raised such concerns about a Trump nominee, and senators on the Committee clearly sought answers to such questions. See, e.g. (Feintam; Hirowpm3).1
The Senate should reject Gorsuch’s nomination to the Supreme Court.Based on his prior record, as well as proclamations by the Trump Administration and others about Judge Gorsuch, these questions raised serious and troubling concerns about placing Gorsuch on the Supreme Court, and produced opposition to his confirmation, even before his hearing. The hearing only reinforced those concerns. As discussed below, the hearing has further shown that
- Gorsuch sides with corporations and the powerful at the expense of everyday Americans,
- Gorsuch will not provide the independent voice and vote we need to stand up to President Trump, and
- Gorsuch’s refusal to answer questions about his judicial philosophy improperly hides his views from the Senate and the American people.
As a result, the Senate should reject Gorsuch’s nomination to the Supreme Court.
Gorsuch's testimony further showed that he tends to favor the powerful and harm the interests of ordinary Americans
In the weeks before his confirmation hearing, extensive analyses of Judge Gorsuch’s record on and off the court indicated that—even more than Justice Scalia—he would be a reliable vote in favor of big corporations and other powerful interests, and against everyday Americans. Corporate interests agree with that assessment. They have been strongly pushing for Gorsuch’s confirmation, both openly and secretly. At least $10 million in dark money is bankrolling pro-Gorsuch TV ads designed to pressure targeted Democratic senators.
Judiciary Committee Democrats engaged Gorsuch on his propensity to rule for corporate and other powerful interests, and against the interests of everyday people. Of course, there are times when corporations are right on the law, and everyday people are wrong. But there are simply too many cases where Gorsuch seems to have made an effort to find some way, however strained, to achieve the right-wing result. We have written about a number of such cases in Real People, Real Lives: The Harm Caused By Judge Gorsuch, which include people harmed by medical device manufacturers urging unsafe off label uses; denied leave in violation of the Rehabilitation Act; disallowed from suing for sexual harassment because they waited too long to report it; denied childhood educational opportunities guaranteed by federal law; fatally Tasered by the police; fired for making a life-saving decision to get to safety rather than obey life-threatening instructions; and fatally electrocuted at work due to inadequate training.
The hearing presented Judge Gorsuch an excellent opportunity to put Americans’ concerns about him to rest. Instead, he only heightened them, exercising well-rehearsed non-responsiveness, deflections, strategies to hide his obfuscation, and sometimes simply providing false testimony.
Democratic senators on the committee particularly focused on two of the cases noted above that had raised concerns. The first was one in which Gorsuch wrote a dissent against a truck driver named Alphonse Maddin, aka “the frozen trucker.” (TransAm Trucking v. Administrative Review Board (2016)). In short, when Maddin was stranded without heat in subzero weather, and with a trailer with frozen brakes, he was ordered to remain with his cargo. Instead, to save his life, he detached the trailer, drove the truck away to find some warmth, and returned 15 minutes later. For this, the company fired him.
A Tenth Circuit panel recognized that this violated a federal law protecting drivers who won’t operate their vehicle when their safety is at risk. But Gorsuch wrote a shocking dissent. While the majority protected Maddin’s right to not put his life at risk, Gorsuch would have protected the company’s alleged “right” to fire him.
When Sen. Durbin questioned Gorsuch, the judge didn’t explain how a statute designed to protect truckers could be interpreted to harm them. Instead, Gorsuch tried to deflect the question, as he did most questions during his testimony. He claimed that he was just following precedent and that Congress hadn’t written the law adequately, even though the two judges in the majority drew exactly the opposite conclusion. (Durbtam).
Then Gorsuch used a second strategy: He mentioned cases where he hadn’t ruled against a worker. Of course, no one has ever accused him of ruling against employees in every single case, but it’s his clear propensity to do so that has drawn concern. As an analogy, if someone has a dangerous habit of frequently driving through red lights, you can’t prove they’re a safe driver just by citing a few times where they didn’t go through a light.
Sen. Franken followed up Sen. Durbin’s inquiry. Here is where Judge Gorsuch showed the ridiculous lengths he would go to in order to not reveal even a scintilla of useful information about his legal philosophy, including his thoughts on specific cases. The senator asked what Gorsuch himself would have done in the trucker’s situation: save his life or throw it away?
Incredibly, Gorsuch wouldn’t answer the question. He expressed how terrible he felt for the driver (another of his strategies), but over and over again, he refused to answer Sen. Franken’s simple question. Franken wouldn’t let up and finally stated in disbelief:
You don’t know what you would have done.
OK. I’ll tell you what I would have done. I would have done exactly what he did.… And I think everybody here would have done exactly what he did. And I think that’s an easy answer. Frankly, I don’t know why you had difficulty answering that….It is absurd to say that this company is in its rights to fire him. …It makes me question your judgment (Frantpm).
Sen. Hirono noted the ominous result of a possible justice who approaches cases as Gorsuch approached the trucker’s case, making an effort to interpret the law in such a way as to undermine it:
If judges are going to work this hard to strain the text of a law to undermine the purpose, which was for the safety, … I think that makes it pretty tough for any laws that that Congress passes or will pass to really be effective in protecting American workers. (Hirotpm).
Republican Senator Tillis noted another important part of Gorsuch’s dissent in TransAm – that it was an example of his resistance to the doctrine of Chevron deference, under which judges generally defer to expert administrative agency interpretations of laws they are charged with administering, like the Department of Labor in the TransAm case. (Tilltpm). Although Republican Senators applauded Gorsuch’s view, Democratic Senators were highly critical. Sen. Franken noted that Chevron has been very important in helping uphold agency rules like “safety standards for children’s toys” and “rules that ensure that pharmaceuticals or medicines are safe.” (Frantpm). He also noted that Justice Scalia had agreed with the principle, but that Gorsuch’s expressed disagreement was sending strong “signals” that he would seek to overrule it. (Frantpm). Sen. Klobuchar noted that there would be “titanic real world implications” if Gorsuch helped overrule Chevron as his opinions were implying, although Gorsuch deflected the questions, saying he was bound by precedent and was simply raising concerns. (Klobtpm).
When addressing another important case—one where Gorsuch denied a child with autism (and others throughout the Tenth Circuit) the education guaranteed to him by Congress—Trump’s nominee went beyond being tight-lipped: He actively provided false information to the committee members about Thompson R2-J Sch. Dist. v. Luke P. (2008).
At the Tenth Circuit, Judge Gorsuch wrote an opinion about a young boy named Luke, reversing every education official and judge below him. He watered down what a school district has to do in order to meet congressional requirements to provide students with disabilities a free appropriate public education. In this case, the school system was unable to help Luke advance in the classroom or apply basic skills learned there to anywhere else, severely compromising hopes that he could one day live more independently and socially. Gorsuch’s opinion concluded that all the school has to do to meet its obligations is come up with an educational plan whose benefit to the child is “merely more than de minimis.” Needless to say, Luke’s family was devastated.
At the confirmation hearing, Gorsuch used his familiar strategies to avoid answering questions about this case. He mentioned a few cases where he had not ruled against a child, expressed sympathy, and claimed to be following allegedly binding precedent in a 1996 Tenth Circuit case.
But then, on the morning of his second day answering questions, the Supreme Court issued a unanimous ruling in another Tenth Circuit case involving an autistic child and IDEA, Endrew F. v. Douglas County School District, that had relied on Gorsuch’s “merely more than de minimis” standard. The Court unanimously reversed the ruling in that case and effectively ruled 8-0 that Gorsuch’s interpretation of the law was wrong. Several Senators questioned Gorsuch closely, and Gorsuch was unable to effectively respond.
Sen. Klobuchar questioned whether the section of that 1996 case Gorsuch claimed was binding precedent for the standard was merely dicta, since the standard was mentioned only once and was not necessary to resolve the case. (Klobwpm). In addition, Sens. Durbin and Klobuchar pointed out that none of the prior cases, in or out of the Tenth Circuit, had used the qualifier “merely.” As Sen. Klobuchar pointed out, by adding “merely,” Gorsuch shut down every part of the range but the very bottom, setting an incredibly low bar for school districts to meet.
Sen. Durbin put Luke’s case in the greater context, noting that Gorsuch had ruled against students with disabilities in eight out ten cases. (Durbwam). Then he asked why, in Luke’s case, Judge Gorsuch had chosen to lower the bar so substantially. But Gorsuch’s answer was completely non-responsive, with no acknowledgement that he had added the word “merely.” Instead, he dissembled, simply repeating his misleading claim that the standard he used to deny Luke’s right to education had come from a previous Tenth Circuit case. As subsequent analysis TransAm Trucking claim was simply wrong.
That Judge Gorsuch would not be straightforward on cases like TransAm Trucking and Luke P. was really no surprise. At the beginning and throughout his testimony, trying to repudiate the evidence that he is an ideologue out of the mainstream, he told senators that his opinions had been unanimous 97 percent of the time.
By itself, that sounds impressive. But Judge Gorsuch chose to leave out a critically important statistic that makes clear the irrelevance of the 97 percent statistic: the vast majority of appellate court decisions are unanimous.2 For example, one study has shown that from 1990-2007 (the year after Gorsuch joined the court), 97.7 percent of all cases before the Tenth Circuit were decided unanimously; the figure was 97.3 percent for all circuit courts during that time period.3 Another study, analyzing the cases from 1998-2009, found that 97.4 percent of all Tenth Circuit cases were decided unanimously.4
So Judge Gorsuch’s repeated statement that 97 percent of cases he was on were decided unanimously tells us nothing. And the hearing clearly reinforced the concern that Gorsuch tends to rule for corporations and the powerful and against the little guy.
The hearing further showed that Gorsuch will not be an independent check on the President
As Senator Grassley remarked at the outset of Gorsuch’s questioning, Senators and others have stated “that now more than ever, we need a justice who will be independent of the president who nominated him or her.” (Grastam). Gorsuch frequently claimed that he would be. But his prior record and failure to back up that claim reinforced the concern that Gorsuch will not be the independent voice and vote on the Supreme Court that America needs.
Several Senators asked Gorsuch about President Trump’s incendiary attacks on “so-called” judges who have ruled against him, including his pre-election criticism that a “Mexican” judge could not rule fairly in a case against Trump University and his post-election attacks on judges who ruled against his immigration order. (Blumtpm, Hirotpm). But all Judge Gorsuch would do at his hearing was to repeat his tepid statements that such comments were demoralizing and disheartening. Gorsuch would not even agree that these statements suggested the President’s lack of support for judicial independence, and would not even apply them specifically to Trump. As Senator Hirono observed after one such statement, “Sean Spicer just tweeted regarding your comments on Trump’s attacks on judges, […] and Sean Spicer just said you were speaking broadly.” (Hirotpm). Even on this issue, Judge Gorsuch declined to stand up to President Trump.
Senators also asked Gorsuch about his record on the bench, which led them to have concerns about whether he would go to extremes to defer to executive authority, as exemplified by his role in Planned Parenthood Ass’n of Utah v. Herbert. In that case, when the governor of Utah arguably abused his executive power to unilaterally defund Planned Parenthood, a Tenth Circuit panel of three other judges stopped the Governor’s plans. Neither party asked that the case be reconsidered, but after Planned Parenthood’s funding had been restored, Judge Gorsuch took it upon himself to request a re-hearing by the full Tenth Circuit. (Blumtpm). The Tenth Circuit decided to not reconsider this decision, but Gorsuch wrote a dissent at the height of the 2016 presidential campaign. (Blutpm1). Gorsuch argued that the Court should defer to the Governor as a matter of “comity” to elected officials. As previously explained, this was neither an argument advanced by the governor nor a result required by comity.
As elicited by Senator Blumenthal during his questioning, according to Gorsuch, “the only question [in the Planned Parenthood case] was what was the governor’s intention?” (Blumtpm). This is eerily similar to the question raised in the currently pending challenges to Trump’s immigration and travel ban. The Governor claimed that he stopped funding not because of Planned Parenthood’s advocacy of women’s right to choose, but because of unrelated accusations against the organization — accusations which he admitted were false and inapplicable to the Planned Parenthoods of Utah.
Unlike Judge Gorsuch’s decision to defer to the Governor, in one of the travel ban cases, Judge Watson decided against Trump’s Executive Order because he considered the clear public record concerning the travel ban’s intent, just as the Tenth Circuit panel looked to the governor’s public statements against Planned Parenthood. Likewise, a federal district court in Virginia also ruled against President Trump’s first executive order because the judge considered past statements by Trump and his advisers that revealed the government’s “impermissible motive.” Gorsuch’s willingness to defer to a chief executive’s authority raises concerns about whether he would show similar deference to presidential decisions if confirmed to the Supreme Court.
Senators also expressed concern about documents released from the Department of Justice on Gorsuch’s service as a high-ranking official in the Department during the Bush Administration, when he defended what were determined to be unconstitutional and improper efforts to assert broad presidential power on subjects like detention, interrogation, and torture of detainees at Guantanamo and elsewhere. Gorsuch did not deny that he had a “significant role” on such issues, but claimed that he was acted merely “as a lawyer” for a client. (Leahtam). But as Senators pointed out, the Bush Administration was not a routine client. Instead, Gorsuch very much wanted a political appointment to become a “full-time member of the team” and “help the cause” (Frantpm). In fact, Gorsuch suggested that the Bush Administration likely appointed him to the Tenth Circuit because they had “seen me in action” at DOJ. (Leahtam). And after becoming a judge, Gorsuch wrote an effusive thank-you to Attorney General Gonzales stating that he “deeply admire[d]” the work that DOJ was doing to “keep the American people safe,” and that a “significant part of me misses being a part of your team in that effort” – hardly a statement by a disinterested lawyer representing a client. Notwithstanding Gorsuch’s evasions, Senators clearly understood that Gorsuch supported broad assertions of presidential power under the Bush Administration, and were particularly concerned because of suggestions by Trump and his allies about his intentions to assert presidential power, perhaps even more broadly. As Sen. Leahy observed concerning interrogations and torture, in such statements Trump even suggested that he would authorize tactics “a hell of a lot worse than waterboarding.” (Leahtam).
Several Senators expressed concern about statements by Trump and his advisers about the lack of independence from Trump that they expected of Judge Gorsuch. When Gorsuch’s nomination was announced, Trump’s team members made it clear that Gorsuch was chosen to represent Trump. Roger Stone, Trump’s advisor, said that “[Trump] needs a supportive court, … [n]ot a conservative court, not a right-wing court—a Trump court.” Loyalty to the President, therefore, would be a key qualification. Kellyanne Conway confirmed that Gorsuch and Trump “support each other.” Steve Bannon, Trump’s chief strategist, stated that Trump’s appointees were “selected for a reason, and that is deconstruction [of the administrative state].” (Frantpm). Senators expressed concern that elevating Gorsuch to the Supreme Court is part of that plan. (Feintam, Klobtpm, Frantpm) Sen. Franken noted that Trump chief of staff Reince Priebus has publicly proclaimed that “Neil Gorsuch represents a type of judge that has the vision of Donald Trump.” (Frantpm). But rather than assuaging Senators’ concerns about such statements, Gorsuch’s performance at the hearing only reinforced the concern that he would not show independence and stand up to President Trump as a member of the Supreme Court.
Gorsuch’s refusal to answer questions about his judicial philosophy at the hearing was even worse than expected and makes clear that he should not be confirmed
Even before the hearing began, many raised concerns about whether Judge Gorsuch would honestly answer questions by senators trying to learn more about his judicial philosophy. This was particularly troubling because despite Gorsuch’s relatively sparse judicial record on abortion and some other controversial issues, President Trump and other advocates expressed confidence that Gorsuch would fulfill President Trump’s promise to select an anti-abortion nominee who would support Trump’s agenda and satisfy the far right on a host of issues. As Senators observed, this made it crucial that Gorsuch, even more than past nominees, reveal to the Senate and the American people his legal and judicial philosophy and views. See, e.g. (Blumwpm3).
In fact, Gorsuch said far less about his judicial philosophy than other nominees and refused to answer specific questions that even justices nominated by past Republican presidents answered. For example:
- He refused to say whether he agreed with key Supreme Court precedents on the right to privacy (Eisenstadt v Baird and Griswold v. Connecticut) that Chief Justice Roberts or Justice Alito had agreed with at their hearings. (Blumwpm).
- He refused to say whether he agreed with the Supreme Court’s unanimous decision more than 50 years ago in Gideon v. Wainwright on the right to counsel in criminal cases (Grastam), even though he eventually did agree that Brown v. Board of Educ. was correct. (Blumwpm).
- He refused to say whether he agreed with, or virtually anything else about, controversial decisions like Roe v. Wade, Citizens United, Bush v. Gore, and Heller v. DC on the Second Amendment, other than saying that they were precedents of the Court that he would follow unless and until they are overturned. (E.g. Grastam, Feintam).
- He refused to say anything about a series of damaging Roberts Court 5-4 decisions harming victims of employment discrimination and favoring corporations, leading Sen. Feinstein to comment “how do we have confidence” that you “won’t just be for the big corporations.” (Feintam).
- He not only would not comment on Citizens United itself, but also refused to reply to questions such as whether he has ever grown concerned about the effect of big money in politics or whether the $10 million in dark money being spent to promote his nomination was “cause for concern” or something that the Committee and the American people should know about. (Whittpm; Whitwam).
- He refused to state whether the Court was correct in Lawrence v. Texas in overruling a previous decision that had upheld a state law against same-sex relations, other than saying that it is now Court precedent. (Coonwpm).
- He not only would not express a view about the Supreme Court’s decision in Shelby County that overruled a key part of the Voting Rights Act, but also would not comment on Justice Scalia’s claims that the entire law was a “perpetuation of racial entitlement” and that Congress’ record in enacting it was entitled to little or no deference. (Leahwam; Franwpm3).
- He refused to comment on the Senate’s treatment of the Supreme Court nomination of Merrick Garland or on any differences between his judicial philosophy and Garland’s. (Leahtam; Whittpm).
- Other than repeating his comments that President Trump’s disparaging remarks about judges were “demoralizing” and “disheartening,” he would not comment on that subject, and would not even answer whether those comments were “an attack on the judiciary” and its “integrity” or whether Trump was “accepting the rule of law.” (Blumtpm).
As suggested above, Gorsuch’s comments on the role of court precedent and when it can properly be overruled were similarly general and unrevealing. He repeatedly listed the factors that he and others have discussed about evaluating precedent, such as its age, whether it has been reaffirmed, and whether it has been relied upon, while being unwilling to apply those criteria to specific key precedents. (e.g. Grastam). For example, as discussed above, he refused to evaluate whether the Court properly overruled a prior precedent in deciding that a state cannot ban same-sex relations in Lawrence v. Texas, which later led to the Court’s decision on same-sex marriage in Obergefell, and he specifically declined to answer, when pressed by Senator Coons, whether overruling Obergefell would “disrespect” decisions like Lawrence and seriously harm “the reliance interests of many couples” who have gotten married since Obergefell. (Coonwpm). He specifically declined to answer Sen. Feinstein’s question as to whether Roe v. Wade is a “super-precedent” that the Court should be very hesitant to overrule. (Feintam).
And he was not able to explain why he was willing to discuss the correctness of a tiny number of precedents like Brown v. Board of Education but not others like Roe, Griswold, Citizens United, and Gideon that significantly affect the “real lives” of so many Americans. (Blumwpm3).
In many instances, Gorsuch simply refused to answer such questions, calling them inappropriate or overly political. He did state several times that he did not want to agree with or criticize past decisions because it could suggest to future litigants how he might rule in future cases. (e.g. Grastam). But the Supreme Court itself, in a decision written by Justice Scalia, has firmly rejected that rationale. In Republican Party of Minn. v. White, the Court struck down a Minnesota rule that forbade candidates for elected judgeships from announcing their views on disputed legal and political issues, including past court precedents. As Justice Scalia commented, a judge’s “lack of predisposition regarding the relevant legal issues in a case has never been thought a component of equal justice.” In fact, he explained, “even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable,” since proof that a judge’s mind “at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of a lack of qualification, not lack of bias.” Indeed, Gorsuch’s rationale, taken to its logical conclusion, would mean that “sitting judges wouldn’t be able to decide cases if they had ever written opinions touching on the same issues before.” Gorsuch’s refusal to answer questions, even more so than past justices, had no proper basis.
His dodging was particularly apparent when Sen. Blumenthal asked whether there was any mention of Roe v. Wade case or of abortion in general with anyone at the Heritage Foundation, which had recommended that he be included in Trump’s second list of potential nominees in September of 2016. Gorsuch gave a carefully phrased reply: “To my knowledge, Senator, from the time of the election to the time of my nomination, I have not spoken to anyone that I know of from Heritage” [emphasis added]. Of course, this excludes the time before the election, when Gorsuch may have given assurances to Heritage that they passed on to the Trump campaign. It is unclear why someone with nothing to hide would give such a carefully limited and non-responsive answer to the question.
Several Democratic Senators made clear their concerns about Gorsuch’s unresponsiveness, particularly in light of firm statements from President Trump and others that he would be anti-choice or otherwise “has the vision of Donald Trump.” (Frantpm). Sen. Hirono commented that Gorsuch was providing “less in the way of answers” than previous Republican nominees, making it extremely difficult to determine his “judicial philosophy.” (Hirotpm). Sen. Feinstein noted that Gorsuch had “been able to avoid specificity like no one I have ever seen before,” making it impossible to realistically determine “what you’re going to do” on his approach to precedent and other key questions. (Feinwam). Senator Durbin noted that Gorsuch had “fended off” many questions of substance, making it impossible for the Committee and the American people to learn what made him “so attractive to the Federalist Society, to the Heritage Foundation” and “to President Trump.” (Durbwam). And Senator Leahy concluded that Gorsuch’s refusal to answer so many questions was preventing “the American people and this Committee” from determining “what vision” he had of the Constitution and the vision that others claimed he shared with President Trump. (Leahwam). Gorsuch’s extreme and unjustified refusal to answer questions at his hearing should lead to a vote against his confirmation.
Conclusion
Following the Gorsuch hearings, 30 senators have already stated that they will oppose Judge Gorsuch’s nomination.. This is not surprising in light of his performance at the hearing: Judge Gorsuch’s misleading statements, false claims, and refusal to provide responsive answers to senators’ questions make it clearer than ever that as a Supreme Court justice, Gorsuch would rule for corporations and the powerful and against ordinary Americans, and that he would not be the independent voice and vote that America needs. The full Senate should reject his nomination.
- “To illustrate how this report refers to specific portions of the Congressional Quarterly transcript of the Senate Judiciary Committee hearings on the Gorsuch nomination, “Feintam” refers to Sen. Feinstein’s questioning in the morning of Tuesday, March 21, while “Hirowpm3” refers to Sen. Hirono’s questioning on Wednesday afternoon in her third round.” ↩
- “Congressional Research Service, “Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court” (March 8, 2017) {“CRS Report”}, page 4, citing Frank B. Cross, “Decision Making in the U.S. Courts of Appeals 160 (2007) (noting the “relative paucity of circuit court panel dissents”).” ↩
- “The Behavior of Federal Judges, Epstein Landes and Posner, 2013; p.265.” ↩
- “CRS Report at 4, citing Christopher A. Cotropia, Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc Review, 43 LOY. L.A. L. REV. 801, 815 (2010) (noting that from 1998 to 2009, 2.54 percent of the opinions issued by the Tenth Circuit included a dissent).” ↩