Because You Asked: What Are the Important Points from The Senate Hearings on Neil Gorsuch?
Welcome to this segment of Because You Asked, I’m Barry Nussbaum.
In this episode, we will answer the big question of the week relating to the Supreme Court, ”what is the important news from the hearings in the Senate relating to proposed Supreme Court nominee Neil Gorsuch?”
To begin, here is some Constitutional background. The appointment and confirmation of Justices to the Supreme Court of the United States involves several steps set forth by the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President and must face a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary committee, which can vote to send the nomination to the full United States Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the Court.
Article two of the United States Constitution requires the President of the United States to nominate Supreme Court Justices, and with Senate confirmation, requires Justices to be appointed. This was for the division of power between the President and Senate by the founders, who wrote:
“he shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the supreme court…”
When former Supreme Court Justice Antonin Scalia passed away about a year ago, a vacancy was created, and in order to fill the court to its capacity of nine Justices, President Trump has nominated Neil Gorsuch who presently sits on the federal appeals court for the 10th circuit.
Here are some of the highlights from the confirmation hearings:
Judge Gorsuch was asked how he would rule on cases if appointed, specifically the Roe v. Wade case, his response was particularly impressive. To put the question into the proper context, during the campaign, President Trump said he would seek to appoint Justices ready to vote to overturn Roe v. Wade, the 1973 decision establishing a Constitutional right to abortion.
Gorsuch said he would have walked out of the door if President Trump asked about how the Judge would rule on the court re Roe v. Wade. Judge Gorsuch said no one from the White House had asked him to make any commitments on legal issues. “I have offered no promises on how I’d rule to anyone on any case,” he said.
He also explained that previous rulings establish precedent which becomes part of the law and the presumption of future rulings. This seemed to suggest that the rulings with him on the court will start with the previous rulings of the court.
Senator Patrick J. Leahy, Democrat of Vermont, pressed Judge Gorsuch on a central question: can he hold President Trump accountable? “No man is above the law,” he said.
The nominee refused to say how he would rule on many issues, besides abortion, including gun rights and Mr. Trump’s travel ban.
Senator Al Franken, Democrat of Minnesota, was perhaps the most aggressive questioner so far. He turned first to the case of a truck driver who abandoned his broken rig in frigid conditions and was fired. He asked Judge Gorsuch, who in a dissent said the dismissal should be upheld, what he would have done if he were faced with the same situation as the driver. “I’m asking you a question, please answer the question,” Mr. Franken said, as the Judge Gorsuch demurred.
When judge Gorsuch began to answer again, the Senator interrupted aggressively. “That’s absurd,” said Mr. Franken, a veteran of Saturday Night Live in a previous life. “Now, I have a career in identifying absurdity. And I know it when I see it.”
Judge Gorsuch handled the Saturday Night Live comedian very well, and explained that ruling much to the dismay of Franken who is a comedian not a lawyer or a judge.
Senator Sheldon Whitehouse, Democrat of Rhode Island, said shadowy groups had spent millions of dollars in “dark money” to support Judge Gorsuch’s nomination. The Senator asked the Judge to urge his supporters to disclose what they had spent. “With all respect, the ball’s in your court,” Judge Gorsuch said. Meaning it was up to the Senate to investigate and if appropriate in their discretion to change the laws. Senator Whitehouse pressed hard to find out who is financing the campaign to get Gorsuch confirmed hinting that secretive untraceable money had a secret policy agenda that once confirmed Gorsuch would adhere to, what was Gorsuch’s response? Very simply the Judge had no idea who was behind the money, had no idea what their agenda was, and had no contact from them. He also refused to take the bait on disclosure suggesting the rules are made by Congress not by the Courts.
Judge Gorsuch has called himself an originalist, meaning that he tries to interpret the Constitution as it was understood by the people who drafted and ratified it. On Tuesday, he said his approach could keep pace with contemporary realities.
Senator Chuck Shumer made the case for the GOP pushing to get Gorsuch confirmed after not holding hearings on Obama’s pick, Merrick Garland. Gorsuch didn’t take the bait, just listened politely. The comments from Senator was political grandstanding. No party will allow a nomination in the last year of a presidency. The Dems wouldn’t do it in the last year of Bush’s term either.
Judge Gorsuch was also asked to address the nominee who never had his hearing, Judge Garland. “Whenever I see his name attached to an opinion, it’s one I read with special care,” Judge Gorsuch said, praising his peer as “an outstanding Judge.” But when Senator Leahy asked whether Judge Garland had been treated fairly, Judge Gorsuch demurred “I can’t get involved in politics,” he said. “there’s judicial canons that prevent me from doing that. And I think it would be very imprudent of judges to start commenting on political disputes.” Mr. Leahy had no such qualms. “I can express an opinion,” he said. “I think it was shameful.”
Gorsuch was dismayed by Trump being critical of the Court’s ruling in the various travel ban cases. Who is right here? Gorsuch did say that President Trump, like all Americans, has a first amendment right, but should not criticize the Judge’s honesty or integrity but rather the rulings.
There are your highlights so far. There’s no doubt that this Justice will be confirmed but the process still goes through its procedures because the Constitution requires it.
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