Supreme Court nominee Neil Gorsuch sought to prove his judicial independence and asserted that he had no problem ruling against the President who appointed him, saying, “no man is above the law.”
In his second day of confirmation hearings, Gorsuch repeatedly tried to avoid prejudging any future cases, maintaining before the Senate Judiciary Committee that he’s a “fair judge.”
Tuesday marked the committee’s first chance to publicly ask him questions. Some senators tried to quiz the federal judge on previous positions and actions taken by President Donald Trump on issues like immigration and torture.
Without stating his personal opinions, Gorsuch attempted to stay on independent turf, though he appeared to distance himself from the President’s past comments calling for the reinstatement of torture.
Asked by Democratic Sen. Patrick Leahy of Vermont whether he thinks the President has the right to authorize torture if it violates law, Gorsuch ticked off a list of precedents that ban torture.
“We have a convention against torture and implementing legislation which bans torture,” he said. “We have the Detainee Treatment Act, which we talked about earlier, which bans cruel, inhumane and degrading treatment. We also have an 8th Amendment.”
Leahy asked Gorsuch the same question once again.
“Senator, no man is above the law,” Gorsuch responded.
Questions about Trump’s statements, policies
Gorsuch also stated that the Trump administration never asked him to make promises to rule certain ways on certain decisions.
Asked specifically by Sen. Lindsey Graham, R-South Carolina, if he was asked by the president to overturn Roe v. Wade, Gorsuch said no.
He was further pressed on what he would have done if Trump had asked him to do so.
“Senator, I would have walked out the door,” Gorsuch said, as the room fell silent. “That’s not what judges do. They don’t do it at that end of Pennsylvania Avenue and they shouldn’t do it at this end either.”
On the President’s travel ban that prevents immigration from six majority Muslim countries, Gorsuch said he will “apply the law faithfully and fearlessly” when asked about whether a blanket religious test is consistent with the First Amendment.
“We have a Constitution and it does guarantee free exercise and it also guarantees equal protection of the laws and a whole lot else,” Gorsuch said in reply to a question from Leahy during his second day of confirmation hearings. “The Supreme Court, in (Zubayadah), said that due process rights extend even to undocumented persons in this country. I will apply the law. I will apply the law faithfully and fearlessly.”
“Anyone, any law is going to get a fair and square deal with me,” he added.
Answering his first question of the day, Gorsuch said that he wouldn’t have any trouble ruling against the President who nominated him.
While there was no mention of Trump in the question — which came from the top Republican on the committee, Republican Sen. Chuck Grassley — nor in Gorsuch’s answer, it comes as Trump has made headlines twice in the past year for criticizing federal judges whose decisions he didn’t like.
Grassley argued that “no one — not even the President — is above the law,” and asked Gorsuch if it would be problematic for him to decide against the President.
“That’s a softball, Mr. Chairman,” Gorsuch responded. “I have no difficulty ruling against or for any party other than based on what the law and the facts in the particular case require.”
Big guy vs. little guy
Gorsuch pushed back against Democratic criticism that he has mostly ruled in favor of big companies or government, arguing Tuesday that he’s ruled in favor of “the little guy,” as well.
“I’d like to convey to you — from the bottom of my heart — is that I am a fair judge,” Gorsuch said to Sen. Dianne Feinstein, the committee’s top Democrat.
He listed off a number of cases in which he felt he ruled against “the big guy.”
“I have participated in 2,700 opinions over 10 and a half years. And, if you want cases where I’ve ruled for the little guy as well as the big guy, there are plenty of them,” he said.
He specifically named a ruling in favor of landowners in a lawsuit over nuclear waste at the Rocky Flats plant, which he said “vindicated the rights of people who had been subject to pollution by large companies in Colorado.”
Critics have pointed to his decision in a case in which a trucker was fired for abandoning his broken-down trailer in freezing temperatures to seek safety.
The trucker, Alphonse Maddin, filed a complaint asserting that his firing violated a federal safety law. In a 2-1 decision the 10th US Circuit Court of Appeals ruled in Maddin’s favor.
Gorsuch dissented. “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck,” Gorsuch wrote and noted that the company “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,” he wrote. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
Sen. Al Franken, D-Minnesota, lambasted Gorsuch for his decision, calling it absurd.
“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 question your judgment.”
Gorsuch hits back at claims made by former student
Gorsuch sharply denied accusations made by a former student that he suggested in a law class last year that women unethically use companies for maternity benefits.
Jennifer Sisk, a former student in Gorsuch’s ethics class at the University of Colorado Law School, wrote a letter to the committee saying Gorsuch asked for students’ opinions about a hypothetical scenario, in which, a woman applied for a job at a large law firm and planned to start a family with her husband in the near future.
“He asked the class to raise their hands if they knew of a female who had used a company to get maternity benefits and then left right after having a baby,” she writes.
Sisk writes that at one point Gorsuch “became more animated saying ‘C’mon guys.’ He then announced that all our hands should be raised because ‘many’ women use their companies for maternity benefits and then leave the company after the baby is born.”
Sisk, a registered Democrat who once worked for former Democratic Sen. Mark Udall of Colorado, said she raised her concerns to the school’s administration, but the school apologized Monday night, saying it never notified Gorsuch of the complaint.
Sen. Dick Durbin, D-Illinois, asked Gorsuch about the incident. Gorsuch said he pulled the scenario from a textbook when talking about some of the challenges young lawyers will face in the workforce.
He said he posed the hypothetical, asking students to weigh in on how they would respond if they faced such a question and then discussed the pros and cons of potential answers.
“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?” Gorsuch said. “And I am shocked every year senator how many young women raise their hands, it’s disturbing to me.”
Supporters of Gorsuch also put forth statements from three other students who claimed that Sisk inaccurately framed the class discussion.
Gorsuch tries not to ‘tip his hand’
Gorsuch was also pressed on his view of previous cases. As is tradition with Supreme Court nominees, Gorsuch declined to give direct answers, saying it would be “inappropriate” to suggest how he would rule on already established precedents.
“I would be tipping my hand and suggesting to litigants that I have already made up my mind,” he said.
His answers are consistent with what’s called the “Ginsburg standard,” a precedent set by Justice Ruth Bader Ginsburg in her 1993 confirmation to not comment on cases, so as not to hint at how she would rule in future cases.
Asked specifically by Feinstein about Roe v. Wade, Gorsuch would not state his personal views or say whether he thought it was a “super-precedent,” like she asked.
“It has been reaffirmed many times, I can say that,” he said.
As senators tried to dig and prod to get his political views on the record, Gorsuch continuously dodged, citing a need to remain objective.
“A good judge doesn’t give a wit about politics or the political implications of his or her decision,” he said.
Gorsuch was slightly more open to talking about issues of religious liberty, something he has written extensively about. This is also consistent with the Ginsburg standard — talking more freely about what topics the nominee has previously written about than things that might be before the court.
Nearly six hours into the hearing, Gorsuch appeared to show some frustration with the confirmation process.
Sen. Sheldon Whitehouse, a Democrat from Rhode Island and staunch opponent of the Citizens United ruling, was questioning Gorsuch on money spent in favor of his nomination by groups that don’t disclose their donors and asked if it concerned him that he didn’t know the backers of the group.
“Senator, there’s a lot about the confirmation process today that I regret. A lot. A lot,” he said. “When (former Supreme Court Justice) Byron White sat here, it was 90 minutes. He was through this body in two weeks and he smoked cigarettes while he gave his testimony. There’s a great deal about this process I regret. I regret putting my family through this.”
Whitehouse kept asking him about what’s known as dark money groups and whether it bothers him. Gorsuch, who was trying not to indicate how he would rule on any cases involving the issue, avoided sharing his personal view.
“Senator, the fact of the matter is it is what it is,” Gorsuch said, somewhat agitated. “And it’s this body that makes the laws and if you wish to have more disclosure, pass a law and a judge will enforce it, Senator.”
Later, Sen Mike Lee, R-Utah, argued it was “unfair” for Whitehouse to question Gorsuch on Citizens United-related issues and asked the judge if he had any involvement in the Supreme Court ruling.
“I was not involved,” he said, before adding forcefully, in an apparent reference to the group spending money, that he speaks only for himself.
“Nobody speaks for me. Nobody. I speak for me. I am a judge. I don’t have spokesman. I speak for myself.”