Gorsuch

by John Greenya

  Touching on a personal level, the clerks wrote, “Most importantly, we know Judge Gorsuch to be a man of decency and integrity. In his work life, he treats everyone around him with the utmost respect—staff, interns, students, clerks and his colleagues on the bench. But we also know something of his life outside of chambers, as a man utterly devoted to his wife and two teenage daughters. That is because Judge Gorsuch welcomes his clerks into his extended family. For most of us, Denver is far from family and friends. Judge Gorsuch made us feel at home for our year there in countless ways—from inviting us to his home to share a meal together to hosting hikes and ski trips in the Colorado mountains. And after we left his chambers, he has continued to teach and mentor us, never hesitating to give us his time and sound guidance.” The former law clerks ended the letter by calling Gorsuch “a remarkable judge and a remarkable man,” and they urged the Senate to move on his nomination at once.

  ON THE FIRST DAY of the hearings, SH 216 was more than a match for the crowd that had been approved (by the Judiciary Committee) to attend the hearings. The room is the size of a football field with the main door in one “end zone,” and the committee members at the other. The nominee sits at a table directly in front of the committee, facing the chairman and ranking minority member, and the committee members sit, according to party and by seniority, on a long, slightly curved dais. The two-story room is topped by television-quality lights built into the ceiling, and on each side of the room there are rectangular booths (a lower and an upper one) where television crews can report without impeding the views of ground-floor reporters. Four very-large-screen television sets—two on each side—provide spectators with an unobstructed view of the proceedings.

  Immediately behind the witness table are three rows of chairs, ten to a row, with an aisle in the middle, for members of Congress and the witnesses’ friends and family members. For this hearing, the nominee’s entourage all but filled that section. Beyond the rows of chairs is a large space filled with long tables for the media (with electrical outlets on the floor beneath the tables), each of which can sit twenty people. Behind this bull pen section is another set of chairs for guests, all of whom had to have been cleared for attendance by the Judiciary Committee staff.

  THE FIRST STATEMENT WAS that of the Judiciary chairman, Charles Grassley (R-IA), followed by that of the ranking minority member, Dianne Feinstein (D-CA) Both legislators are eighty-three, and neither one is a lawyer, a lack that apparently does not bother them or hinder their ability to question judicial nominees. Senator Grassley is on record as having said that while he might see more “nuances” if he were an attorney, he feels comfortable basing his questions and comments on his background as a farmer.

  In her twenty years on the Judiciary Committee, Senator Feinstein has never voted for a Republican nominee, but Grassley, who has been on the committee since his election in 1982, voted to approve both Stephen Breyer and Ruth Bader Ginsburg.

  In his statement, Grassley welcomed Gorsuch, heaped praise on him for his record and accomplishments, and then said:

  To this senator, what’s far more distressing about each Executive overreach and each failure to defend the law, is the damage it does to our constitutional order. The damage those abuses inflict is far more difficult to undo than the policies that animated them. For as John Adams observed, “Liberty, once lost, is lost forever.” So, the separation of powers is just as critical today as it was during the last administration. And the preservation of our constitutional order—including the separation of powers—is just as crucial to our liberty today as it was when our founding charter was adopted . . . .

  So if you hear that you’re for some business or against some plaintiff—don’t worry. You’ve heard all of that stuff before. It’s an old claim, from an even older playbook. You and I and the American people know whose responsibility it is to correct a law that produces a result that you dislike. It’s the men and women sitting here with me.

  Good judges understand this. They know it isn’t their job to fix the law. In a democracy, that right belongs to the people.

  It’s for this reason that Justice Scalia said, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

  Judge, I look forward to hearing more about your exceptional record. And I look forward to the conversation we’ll all have about the meaning of our Constitution and the job of a Supreme Court Justice in our constitutional scheme.

  Next came the ranking minority member of the Judiciary Committee, Dianne Feinstein. She, too, praised the nominee, but got right to the point with her concerns.

  Judge Gorsuch, I want to welcome you and your family . . . . President Trump repeatedly promised to appoint someone “in the mold of Justice Scalia” and said that the nomination of Judge Gorsuch illustrates he’s “a man of his word.”

  For those of us on this side, our job today is not to theoretically evaluate this or that legal doctrine or to review Judge Gorsuch’s record in a vacuum. Our job is to determine whether Judge Gorsuch is a reasonable, mainstream conservative or is he not.

  CHAIRMAN GRASSLEY THEN ANNOUNCED that each senator on the committee would have ten minutes to question the nominee and thirty minutes the next day, and urged them to keep on the clock.

  For the next three and a half hours, the senators went at it. The Republicans praised the western judge to the eastern skies. Utah’s Mike Lee (who had been one of the twenty-one judges on President Trump’s list of potential Supreme Court nominees and had argued cases before the Tenth Circuit) sounded younger than his age when he said Gorsuch was “awesome” and “fantastic.” Orrin Hatch’s praise was notably over the top, and Lindsey Graham of South Carolina got a few chuckles from the audience when he admitted he was not exactly the president’s favorite Republican senator.

  The Democrats on the committee, especially Dick Durbin of Illinois, wasted little time with niceties but got right to the crux of their objections. Durbin accused Gorsuch of being “part of a Republican strategy to capture our judicial branch of government at every level. That is why the Senate Republicans kept this Supreme Court seat vacant for more than a year and why they left 30 judicial nominees who had received bipartisan approval of this committee to die on the Senate calendar as President Obama left office.” Durbin then added, “Despite all of this, you are entitled to be judged on your merits.”

  The Illinois Democrat made reference to two cases that greatly bothered those who opposed the Gorsuch nomination, the Hobby Lobby case previously discussed and TransAm trucking. In the latter case, a driver, Alphonse Maddin, was driving a trailer through Illinois in winter when the brakes on the trailer froze. Gorsuch’s Tenth Circuit fellow judges found in favor of the truck driver, whom TransAm had dismissed, but Gorsuch dissented, writing:

  [A] trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods. It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

  CNN’s legal analyst Paul Callan opined:

  Under the rules of the US Department of Labor, a truck driver can’t be fired for refusing to “operate” his vehicle because of “safety concerns.” But in his dissent, Gorsuch didn’t buy the argument that a refusal to “operate” the vehicle was even involved. In fact, he “operated”
his truck, driving it to a gas station against company orders that he should have remained with the trailer.

  Callan said Gorsuch

  was demonstrating his firm belief in the principle that the actual words of a law should be strictly applied by the court. This doctrine, often referred to as textualism, stands for the proposition that it is up to the legislature to make [the laws]. Gorsuch maintained that the actual words of the statute in question would only back the driver when he was “operating” both the cab and the trailer as a single unit. Obviously, he couldn’t “operate” the truck and trailer together and drive away for help and warmth because the brakes on the trailer were frozen. The other judges on the 10th Circuit were willing to apply a dollop of common sense and give the driver the benefit of the doubt.

  Conservatives such as Gorsuch abhor this vision of the law because they believe it robs the democratically elected legislature of the right to make law in accordance with the will of the electorate. Instead liberal judges “create” their own law with each new case, creating uncertainty about how future judges will handle future cases.

  The twin brother of textualism in constitutional law is the doctrine of originalism, which holds that when interpreting the Constitution, a judge should stay as close to the “original intent” of the Founding Fathers as possible. But even true believers in originalism have to bend to the reality of changing times on occasion. After all, the 13 original states often used punishments such as whippings and displaying criminals in stocks and pillories until the mid-19th century. Today even most originalists would find such punishments to be “cruel and unusual” violations of the US Constitution.

  Paul Callan ended his CNN article with a bit of advice: “Gorsuch would be wise to remember the oft-quoted words of Scalia, ‘I’m an originalist and a textualist, not a nut.’ Even Scalia probably would have let the truck driver thaw out at the gas station.”

  Senator Durbin got in a good parting shot when he said, in a harsh tone, that the weather on that day was “not as cold as your dissent.” He ended his questioning by stating, “[This president is] going to keep you busy.”

  Gorsuch appeared to take this criticism in stride, but during Durbin’s questioning, his jaw was set a bit more firmly, and there was a noticeable furrow in his brow. Louise, the judge’s wife, who is also able to maintain a fixed, almost stern visage, had a grim look on her pleasant face.

  DEMOCRATIC SENATOR FROM RHODE Island Sheldon Whitehouse was impressive in his give-and-take with the nominee regarding dark money (that which cannot be traced back to its giver) and the role it plays in modern-day politics. He told Gorsuch that it is very hard to find the names of the people who contributed to the conservative group Judicial Watch, which has said it is spending $1 million to get Gorsuch confirmed.

  “Hypothetically,” Whitehouse continued, “it could be your friend Mr. Anschutz [the Colorado billionaire who has been a Gorsuch client and then mentor for several decades]. We don’t know because it is dark money.”

  He then asked Gorsuch why someone thought it was worth $1 million to get him confirmed.

  “You’d have to ask them,” Gorsuch responded, and Whitehouse countered, “I can’t, because I don’t know who they are. It’s just a front group.”

  An interesting take on the frozen trucker case was provided by the legal blog Above the Law, which surveyed a group of Al Maddin’s fellow truck drivers to see what they made of the controversy. Surprisingly, they were not particularly sympathetic.

  According to Above the Law editor Elie Mystal, who wrote the story, “[The truckers’] legal reasoning sounds close to a ‘contributory negligence’ standard. For their perspective, if Maddin put himself in a position to run out of gas, then he caused the events that led to his own firing.”

  ANOTHER SENATOR UPSET BY Gorsuch’s ruling in the trucker case was Al Franken (D-MN), the former writer and performer on Saturday Night Live. Franken made no bones about his view of the facts in the frozen trucker case—and Judge Gorsuch’s dissent. He pushed and pushed at Gorsuch to tell him what he would do if he found himself in the same dilemma. Gorsuch said, “I don’t know what I would have done if I were in his shoes. I don’t blame him at all for doing what he did do. I thought a lot about this case. I totally empathize.”

  “I would have done exactly what he did,” Franken immediately replied, and Gorsuch, sounding almost on the verge of sarcasm, countered with, “Yeah, I understand that.”

  The junior senator from Minnesota rolled right on:

  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. Okay, so you decided to write a thing in dissent. If you read your dissent, you don’t say it was like subzero; you say it was cold out. The facts that you describe in your dissent are very minimal . . . . You go to the language of the law. And you talk about that . . . . And you decided they had the right to fire him, even though this law says you may not fire an employee who refuses to operate a vehicle, because he did operate the vehicle.

  By this point, the questioning had become repetitive, and Gorsuch, perhaps in an attempt to speed things up, said, “That’s the gist of it.”

  Franken concluded with a statement that made almost all media accounts of the dialogue: “When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd. Now I had a career in identifying absurdity, and I know it when I see it. And it makes me—you know, it makes me question your judgment.”

  Franken ended his time by mentioning that both White House senior advisor Steve Bannon and Chief of Staff Reince Priebus had included Gorsuch in what they referred to as their plan to “deconstruct the administrative state” and roll back forty years of regulatory law.

  Senator Franken then asked the nominee, “Are you comfortable with your nomination being described in such transactional terms?” Gorsuch quickly replied, “There is a lot about this process that makes me uncomfortable.”

  AT FIFTEEN MINUTES BEFORE 3:00 p.m., the nominee was finally formally introduced—by Senate tradition, the nominee is “introduced” by a senator or senators from his or her home state and, sometimes, also by others—to the committee and, via CSPAN, the country and world, by three men, two of whom were Democrats.

  It is traditional for the senators from the nominee’s home state to introduce him or her. In this case, it was Republican Cory Gardner and Michael Bennet, a Democrat. Said the latter, “I’m not here to take a position or persuade any of our colleagues how to vote. I am keeping an open mind about this nomination and expect this week’s hearings will shed light on Judge Gorsuch’s judicial approach and views of the law.”

  Throughout the first day of the hearings, the name Merrick Garland seemed to come up as often as the nominee’s. Bennet was no exception, saying that the way the Senate treated Garland was “an embarrassment to this body,” and adding, “it is tempting to deny Judge Gorsuch a fair hearing . . . but two wrongs do not make a right.”

  The second Democratic “presenter” was Neal Katyal, President Barack Obama’s acting solicitor general, with whom Gorsuch had served on the Federal Appellate Rules Committee. Katyal told the Judiciary Committee, “It is a tragedy of national proportions that Merrick Garland is not on the court. And it would take a lot to get over that,” but added, “Indeed, there are less than a handful of people that the president could have nominated to even start to rebuild that loss of trust . . . But in my opinion Neil Gorsuch is one.”

  Earlier, in an op-ed article, Katyal had written, “I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration,” and called Garland “perhaps the most qualified nominee ever for the high court,” but he said, as quoted by Politico, “G
orsuch . . . should be at the top of the list. I believe this, even though we come from different sides of the political spectrum . . . . I have seen him up close and in action [and] he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.”

  Some liberals immediately dissed Katyal’s support of Gorsuch. Nan Aron, president of Alliance for Justice, told CNN, “The elite legal class has closed ranks around Gorsuch and this is just the latest example. It seems as if too many of them are too impressed by Gorsuch’s personal polish and resume to see past them to how damaging his record is when it comes to the impact on everyday people.” This theme would be echoed and expanded upon in the remaining days of the hearings.

  Shortly after three, Neil Gorsuch addressed the members of the Judiciary Committee: “Mr. Chairman, Senator Feinstein, Members of the Committee: I am honored and I am humbled to be here. Since coming to Washington, I have met with over 70 senators. You have offered a warm welcome and wise advice. Thank you. I also want to thank the President and Vice President. They and their teams have been very gracious to me and I thank them for this honor. I want to thank Senators Bennet and Gardner and [Solicitor] General Katyal for their introductions. Reminding us that—long before we are Republicans or Democrats—we are Americans. Sitting here I am acutely aware of my own imperfections. But I pledge to each of you and to the American people that, if confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of our great nation.”