Day Three: Headaches for Senate Dems as Gorsuch Defends Judicial Independence

ANALYSIS: Supreme Court nominee Judge Neil Gorsuch concludes his testimony before the Senate Judiciary Committee.

U.S. Sen. Amy Klobuchar, D-Minnesota, gestures as she questions Judge Neil Gorsuch during the third day of his Supreme Court confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 22 in Washington.
U.S. Sen. Amy Klobuchar, D-Minnesota, gestures as she questions Judge Neil Gorsuch during the third day of his Supreme Court confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 22 in Washington. (photo: Justin Sullivan/Getty Images)

Day three of the Senate Judiciary Committee hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court brought a continuation of the marathon session of questions and answers that took place on day two. Gorsuch spent 11 hours on Tuesday being tested and interrogated, and then he spent another 10 hours facing the same process on Wednesday.  

As with day two, the Democrat senators sought to pin down the nominee regarding his views on wide-ranging issues, while the Republicans continued to assert his worthiness for a seat on the high court. As on day two, Judge Gorsuch once more proved himself more than capable of answering everything posed to him, with both knowledge and courtesy. By the end of the day, the judge seemed well on his way to becoming an associate justice.

While the tenor of day two was often tense and even angry — witnessed by Sen. Al Franken’s rude dismissal of the nominee as “absurd” for his answer on the trucker case — the atmosphere of day three was marked by moments of intense discussion, joviality and even poignancy.

And in a statement of the general sense that Gorsuch had crossed the hurdles of the interrogation, several senators, including Franken, used most of their allotted remaining time reading political statements rather than asking questions. Franken, for example, entered into a very lengthy discourse on the problems of arbitration. By the end, a level of frustration was palpable on the part of the Democrats. Speaking for the liberal senators on the committee, Sen. Dianne Feinstein, D-California, declared, “What worries me is you have been very much able to avoid any specificity like no one I have ever seen before. And maybe that’s a virtue; I don’t know.” 


Probing Independence

Exasperated as they were, the Democrat senators probed intently into Gorsuch’s judicial independence from the man who nominated him, President Donald Trump. They also tried again to connect Gorsuch to the statements and ideas that the liberal senators deem egregious.

Sen. Patrick Leahy, D-Vermont, asked Gorsuch to explain his views on the U.S. Constitution’s “Emoluments Clause” and the legal understanding of “high crimes and misdemeanors.” Both questions were aimed at eliciting Gorsuch’s thoughts on what some in the media and others in the Democratic Party have been saying will inevitably come before the high court. The Emoluments Clause in the Constitution declares, “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” It has been suggested that the clause could apply to the president, and a liberal watchdog group, Citizens for Responsibility and Ethics in Washington, has sued on the claim that Trump-owned businesses should be barred from accepting payments from foreign governments. The issue of “high crimes and misdemeanors” has been raised because that is the threshold needed for the impeachment of a president.

Gorsuch, sensibly, declined to give detailed replies, but it did not deter Leahy from moving on to ask Gorsuch if he agreed with the views of senior presidential counselor Stephen Bannon, whom Leahy declared was “giving a platform to extremists and misogynists and racists.” As he did on day two, Gorsuch answered, “Respectfully, none of you speaks for me. I am a judge. I am independent. I make up my own mind.”

Similarly, Sen. Sheldon Whitehouse, D-Rhode Island, suggested that too many judges and even the Supreme Court can be organs of a party. “I don’t see judging that way,” Gorsuch said. “I don’t see the rule of law that way.”

And with Leahy, Gorsuch was again asked if he agreed with the statement of Justice Antonin Scalia that the 1960s Voting Rights Act was a perpetuation of racial entitlement. Gorsuch said, “I don’t speak for Justice Scalia. I speak for myself.”


The Life Issues

The Democratic members of the committee likewise continued to raise Roe v. Wade, as well as the equally titanic Obergefell decision that legalized same-sex “marriage.” In both situations, the senators drove home repeatedly that Roe and Obergefell are precedents. The importance to return to Roe was evidently deemed essential because of the failure of Feinstein to secure an admission from Gorsuch that Roe should somehow be seen as a “super-precedent.” In all of his responses, Gorsuch readily acknowledged that Roe should be treated with the due weight of a precedent.

Even more revealing was the exchange between Feinstein and Gorsuch on assisted suicide, a subject Gorsuch chose for his doctoral dissertation at Oxford University and that he later chose as a subject for a book published in 2006.

In an emotional moment, Feinstein spoke of her late father’s suffering, and Gorsuch responded with tears in his eyes about his own father. He spoke movingly but rationally about the parameters of pain management, suffering and end-of-life issues, noting, “At some point, you want to be left alone.” In looking at the question of pain management, he proposed, “Supposing you cannot handle the pain … anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death. Not intentionally, but knowingly. I draw a line between intent and knowingly.”

In this, Gorsuch seemed to be advancing the “Double-Effect Principle” that the U.S. bishops described clearly in their discussion of palliative care versus assisted suicide: 

Centuries of Catholic moral tradition say it is not. Sometimes it is impossible to achieve some good effect without causing a bad effect as well. When an act has both a good and a bad effect, we should ask ourselves whether it meets four criteria. First, the act itself must be good, or at least morally indifferent; giving medication to relieve pain certainly meets this test. Second, the good effect must not be attained by means of the bad effect— we cannot claim, like Jack Kevorkian, that we may deliberately kill suffering people because once they are dead they can’t suffer. Third, the bad effect must not be intended; we cannot give pain medication in order to end pain and cause death. Fourth, there must be a serious reason for pursuing the good effect; it would be irresponsible to risk hastening death to relieve an ordinary headache.

It was a good conversation, even though Feinstein failed to grasp the significance of Gorsuch’s refutation of assisted suicide.

Day four will bring a final set of witnesses to testify about the judge. Then the nomination — barring a shocking revelation — will be moved out of the committee by April 3. If all goes according to plan, the Gorsuch nomination will be voted on by the entire Senate around April 8, assuming that the Democrats choose not to filibuster and spark another round of bitter debate that might end with the dreaded “nuclear option,” breaking the filibuster in the Senate.

On this day, however, the judge completed his daunting task of presenting his case for nomination. Sen. Orrin Hatch, R-Utah, who has taken part in 14 Supreme Court confirmation hearings, summed up the testimony when he said, “I’ve seen an awful lot of great people in the law come before this committee. And I haven’t seen anybody any better than you.”


Matthew Bunson, a senior editor with the Register, is covering the Gorsuch hearings in
Washington. He filed this report from the Senate Judiciary Committee room.