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Behind Neil Gorsuch’s Rhetoric, His Record Suggests Aggressive Judge Wedded to Conservative Agenda

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Supreme Court nominee Neil Gorsuch is heading back to Capitol Hill today for a second day of confirmation hearings. During Monday’s hearing, Democratic senators repeatedly criticized Gorsuch’s record, as well as their Republican counterparts for refusing to take up the nomination of President Obama’s pick, Merrick Garland, to replace the late Supreme Court Justice Antonin Scalia. Judge Neil Gorsuch has a long history of ruling against employees in cases involving federal race, sex, age, disability and political discrimination and retaliation claims. For more, we speak with Ian Millhiser, senior fellow at the Center for American Progress Action Fund and editor of ThinkProgress Justice. His recent piece is headlined “The Judge Gorsuch who spoke in the Senate today is nothing like the man who wrote his opinions.”

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: Supreme Court nominee Neil Gorsuch is back on Capitol Hill today for day two of his confirmation hearing. Each senator on the Judiciary Committee will be allotted 30 minutes to question the federal judge, who was tapped by President Trump to fill the seat left vacant by Antonin Scalia’s death over a year ago. President Obama nominated Merrick Garland to replace Scalia nearly a year ago, but Republicans refused to even hold hearings, fearing that Garland would tip the ideological balance of the court to the left. During opening statements on Monday, Democratic senators repeatedly criticized Gorsuch’s record and took aim at their Republican counterparts for refusing to take up the nomination of Garland last year. This is Democratic Senator Sheldon Whitehouse of Rhode Island.

SEN. SHELDON WHITEHOUSE: Now, where do you fit in? When Hobby Lobby was in the 10th Circuit, you held for a corporation having religious rights over its employees’ healthcare. Your record on corporate versus human litigants comes in by one count at 21 to two for corporations. Tellingly, big special interests and their front groups are spending millions of dollars in a dark money campaign to push your confirmation.

We have a predicament. In ordinary circumstances, you should enjoy the benefit of the doubt based on your qualifications. But several things have gone wrong that shift the benefit of the doubt. One, Justice Roberts sat in that very seat, told us he’d just call balls and strikes, and then led his five-person Republican majority on that activist five-to-four political shopping spree. Once burned, twice shy. Confirmation etiquette has been unhinged from the truth.

Two, Republican senators denied any semblance of due legislative process to our last nominee, one, I would say, even more qualified than you, and that’s saying something. Why go through the unprecedented political trouble to deny so qualified a judge even a hearing, if you don’t expect something more amenable to come down the pike? Those political expectations also color the benefit of the doubt.

AMY GOODMAN: That’s Rhode Island Democratic Senator Sheldon Whitehouse. In his opening statement, Supreme Court justice nominee Judge Neil Gorsuch warned against judges being, quote, “secret legislators.”

JUDGE NEIL GORSUCH: When I put on the robe, I’m also reminded that, under our Constitution, it’s for this body, the people’s representatives, to make new laws, for the executive to ensure those laws are faithfully executed, and for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk, and those who came before the court would live in fear, never sure exactly what the law requires of them, except for the judges’ will. As Alexander Hamilton said, liberty can have nothing from—nothing to fear from judges who apply the law, but liberty has everything to fear if judges try to legislate, too.

AMY GOODMAN: That’s Supreme Court justice nominee Neil Gorsuch. To talk more about the judge, we’re joined by Ian Millhiser, senior fellow at the Center for American Progress Action Fund, editor of ThinkProgress Justice, author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

So, Ian, we want to get your view of the first day of the hearing. The judge was not questioned. The senators just made their statements. But talk about what most—what you thought was most important that came out of yesterday’s hearing.

IAN MILLHISER: Sure. So, I was really struck by the difference between Judge Gorsuch’s rhetoric at the hearing and what I see in his record as a judge. Judge Gorsuch comes out of a tradition that’s become particularly prominent on the right since Barack Obama was sworn in, that calls for judges to be more active, more aggressive in pushing a conservative agenda, more hostile to agency regulation, more hostile to laws like the Affordable Care Act. And everything I see in Judge Gorsuch’s record suggests that he very much believes in that agenda. Whether you look at his Hobby Lobby decision, you look at his efforts to dismantle many of the powers that agencies like the EPA has, this looks like he’s going to be a very aggressive judge. So I was surprised to hear him talk about judicial modesty and not behaving like a super-legislator, because when I look at his record, I mean, modesty does not seem to be what he is interested in.

JUAN GONZÁLEZ: Well, let’s go back to part of Neil Gorsuch’s opening statement before the Senate Judiciary Committee.

JUDGE NEIL GORSUCH: In my decade on the bench, I’ve tried to treat all who come before me fairly and with respect and afford equal right to poor and rich. I’ve decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of a large nuclear waste pollution problem produced by corporations in Colorado. I’ve ruled for disabled students, for prisoners, for the accused, for workers alleging civil rights violations and for undocumented immigrants. Sometimes, too, I ruled against such persons. My decisions have never reflected a judgment about the people before me, only a judgment about the law and the facts at issue in each particular case. A good judge can promise no more than that, and a good judge should guarantee no less, for a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels.

JUAN GONZÁLEZ: Ian Millhiser, what about this, this particular—these particular words of Neil Gorsuch? And also, could you talk about—later on in the hearing, he also talked about his admiration for Justice Robert Jackson and how he compares to that former justice?

IAN MILLHISER: Sure. So, I mean, I think it is important to notice that—and Gorsuch is right about this, that judges tend to operate in broad—paint with broad ideological brushes or broad constitutional brushes, and not—you know, a bad judge is someone who looks at each individual case and figures out the result they want in that individual case. Gorsuch doesn’t seem like someone who does that.

What he does do, though, is he believes in a comprehensive, very conservative ideology, which will sometimes reach results that are good, but that very often reaches results that have very sweeping implications, that I, at least, think are pretty bad. You know, to give an example of that, there was a case involving an immigrant, someone who was sent back to Mexico, wanted to re-enter the United States and was very, very poorly treated by the federal government. And Gorsuch ruled in favor of this very mistreated immigrant. But in the process of doing so, he laid out a broad rule, which, if it were taken up by the Supreme Court, would make it very difficult for the EPA to operate, would make it very difficult for the Department of Labor to enact very—a number of regulations protecting workers, could potentially have implications for food safety and other areas of the law. So he painted with a broad brush, and the breadth of his opinion was broad enough to help this one immigrant. But it wasn’t—but it’s still a very comprehensively conservative decision that has much bigger implications that I think should be very frightening.

You asked about Justice Robert Jackson. You know, he praised Jackson in his hearing. Jackson is someone who’s associated very much with judicial restraint. And it was another example of Gorsuch trying to paint himself as the picture of judicial modesty. But again, I look at his record as a judge, and I just don’t see the modesty that he describes in his testimony there.

AMY GOODMAN: Let’s go to Utah’s Republican Senator Mike Lee.

SEN. MIKE LEE: You have the résumé of a Supreme Court justice. But I think what’s most impressive, and for our purposes what’s most important, about your career and about the approach you take to the law is your fierce independence from partisan influence and from any personal biases that you might otherwise be inclined to harbor.

AMY GOODMAN: During Monday’s hearing, several Democratic senators, including Dick Durbin of Illinois, talked about how Republicans blocked Obama’s nomination of Judge Merrick Garland.

SEN. DICK DURBIN: The journey began with the untimely death of Justice Scalia in February of 2016. President Obama met his constitutionally required obligation by nominating Judge Merrick Garland to fill that vacancy in March of 2016. Senate Republican Leader Mitch McConnell announced that for the first time in the history of the United States Senate he would refuse Judge Garland a hearing and a vote. He went further and said he would refuse to even meet with the judge. It was clear that Senator McConnell was making a political decision, hoping a Republican president would be elected. He was willing to ignore the tradition and precedent of the Senate, so that you could sit at this witness table today.

AMY GOODMAN: So that was Senator Dick Durbin. Ian Millhiser, as we wrap up, in our next segment we’re going to be talking about the Federalist Society with New York Times reporter Eric Lipton, and its power in choosing judges and shaping the Trump judiciary, but what about what’s going to happen right now? It took over 320 days. Garland never had a hearing. They are talking about fast-tracking this to—when would be a vote?

IAN MILLHISER: I mean, we’re probably looking at a vote sometime in April. They want to get this done as quick as possible, so that something like, say, for example, an FBI investigation into the president of the United States doesn’t derail this confirmation. You know, Republicans know what’s at stake here. There’s a big gerrymandering case that’s going to be heard by the Supreme Court next term. There’s a bunch of cases involving the future of voter suppression laws in places like North Carolina. So these guys have done—

AMY GOODMAN: Travel ban.

IAN MILLHISER: Travel ban, right. I mean, these guys have done a great deal to manipulate the way that our elections are held, and make it easier for Republicans and harder for Democrats. And if the Supreme Court takes that away from them—and if Merrick Garland had been confirmed, it’s likely that the Supreme Court would say, “No more of that. You don’t get to manipulate elections anymore”— Republicans would be in a very difficult position. So they want this guy confirmed fast, because they want their conservative majority that’s going to protect these laws that allow them to manipulate how our elections are held.

AMY GOODMAN: Ian Millhiser, we want to thank you for being with us.


AMY GOODMAN: And we’re certainly going to check back with you, senior fellow at the Center of American Progress Action Fund, editor of ThinkProgress Justice. We’ll link to your piece, “The Judge Gorsuch who spoke in the Senate today is nothing like the man who wrote his opinions.” Ian is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

When we come back, New York Times reporter Eric Lipton on the Federalist Society, particularly its vice president, [Leonard Leo], who is on leave now, coordinating the whole presentation of Justice Gorsuch. This is Democracy Now! Stay with us.

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