Though Judge Neil Gorsuch was sitting before the Senate Committee on the Judiciary Monday, Democrats had another man on their mind — Judge Merrick Garland.
Senate Democrats repeatedly invoked the botched nomination of Garland — former President Barack Obama’s nominee to succeed the late Justice Antonin Scalia — while attacking the judge’s kind words for originalism, an interpretative philosophy that calls for the Constitution to be interpreted according to its original meaning. Others asserted Gorsuch has consistently revealed a preference for corporate interests over and against sympathetic plaintiffs.
“It was almost a year ago today that Obama nominated Chief Judge Merrick Garland to this seat,” said California Sen. Dianne Feinstein, the ranking Democrat on the panel. “I am deeply disappointed that it’s under these circumstances that we begin our hearings.”
Senate Minority Whip Dick Durbin asserted the GOP’s delay of the Garland nomination was part of a broader political scheme to assert partisan control over the federal courts.
“Your nomination is part of a Republican strategy to capture the judicial branch of government,” he said, specifically mentioning the role the Federalist Society and the Heritage Foundation, two scholarly conservative organizations, played in advising the Trump administration. “Despite all of this, you’re entitled to be judged on the merits,” he added.
There are currently 114 vacancies across the federal courts, affording Trump the opportunity to recast the direction of the federal judiciary.
Still, Democratic denunciations of Republican obstructionism quickly turned to standard ideological barbs, trained primarily on Gorsuch’s originalist sympathies.
“[I]f we were to dogmatically adhere to originalist interpretation, then we would still have segregated schools and bans on interracial marriage,” Feinstein said. “Women wouldn’t be entitled to equal protection under the law and government discrimination against LGBT Americans would be permitted.”
“America needs a Supreme Court justice who will protect the Constitution, not one who will countenance the faith or fear of some as a justification for infringing the liberty of many,” Democratic Sen. Chris Coons of Delaware said, seemingly referencing Gorsuch’s capacious view of religious liberty. “It’s against that backdrop that we will be seeking to understand your commitment to the rule of the law, the guarantees of the First Amendment and individual liberty.”
Democrats on the panel repeatedly invoked two of Gorsuch’s rulings in particular, suggesting these two cases will be subjected to extra scrutiny.
The first case involves a truck driver who was dismissed for abandoning his cargo during freezing winter conditions.
“There was no heater in the truck, and according to [the driver’s] recollection, it was so cold, it was 14 degrees below zero — not as cold as your dissent, Judge Gorsuch, that argued his firing was lawful,” Durbin said, in one of the most pointed comments of the hearing.
The second case concerns an opinion Gorsuch wrote expressing serious reservations about the Chevron doctrine, which requires courts to defer to a federal agency’s interpretation of law, so long as it is reasonable. The doctrine — first formulated by Scalia — has become a major bugaboo of conservative and libertarian jurists.
While progressives argue the doctrine is essential to ensuring agency decisions are shaped by experts, conservatives argue that it effectively places most government action beyond judicial review.
“Such a change in law would dramatically affect how laws passed by Congress can be properly carried out,” Feinstein said.
President Donald Trump, never far from the minds of congressional Democrats, also won several references.
“You have a special obligation to be forthcoming about your views — not to prejudge the merits of a particular case before the court — but to share your view of long-standing precedents, that the president who nominated you indicated would be overturned,” Democratic Sen. Richard Blumenthal said in his opening statement.
Speaking after the hearing, committee chairman, GOP Sen. Chuck Grassley, told reporters that Democrats were cribbing lines from a tired play book, and argued none had successfully landed a punch on the nominee.
“I’ve gone through his cases and I don’t think [these attacks] hold water,” Grassley said. “I think he will demonstrate that very clearly tomorrow.”
“Our research shows he’s a person who calls the shots they way they should, and I think he best demonstrated that in a statement he made [when nominated] that a judge who likes every one of his opinions probably isn’t a very good judge,” he added.
Other conservative legal commentators were similarly pleased.
“Senate Democrats made it clear that they intend to use these hearings as a political vehicle to attack the president and engage in obstruction and gridlock,” said Carrie Severino, chief counsel of the Judicial Crisis Network. “Judge Gorsuch is winning bipartisan support because he is a mainstream, fair and independent judge with steadfast faithfulness to the rule of law and the Constitution who deserves a fair up or down vote.”
GOP South Carolina Sen. Lindsey Graham told colleagues he believed the day’s partisan posturing was exacerbating a politicized confirmation process.
“What we’re doing is going to destroy the judiciary over time,” he said.
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