- Kristen Clarke
president and executive director of the Lawyers’ Committee for Civil Rights Under Law. She will testify before the Senate Judiciary Committee on Thursday (tomorrow). The Lawyers’ Committee just issued a report on Gorsuch’s civil rights record.
- Elliot Mincberg
senior fellow at People for the American Way. He is the former chief counsel for oversight and investigations of the House Judiciary Committee.
During Tuesday’s hearing, Supreme Court nominee Neil Gorsuch faced questions about his views on the Supreme Court’s Citizens United ruling and the $10 million dark money campaign supporting his nomination. A recent New York Times investigation reveals Gorsuch has close ties to Colorado billionaire Philip Anschutz. For more, we speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, and with Elliot Mincberg, former chief counsel for oversight and investigations of the House Judiciary Committee.
AMY GOODMAN: Supreme Court nominee Neil Gorsuch is back on Capitol Hill for a second day of questioning before the Senate Judiciary Committee, Gorsuch 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 at nearly a year ago, but Republicans refused to even hold hearings, fearing Garland would tip the ideological balance. During Tuesday’s hearing, Neil Gorsuch faced questions about his views on the Supreme Court’s Citizens United ruling and the $10 million dark money campaign that is supporting his nomination. This is Democratic Senator Sheldon Whitehouse of Rhode Island.
SEN. SHELDON WHITEHOUSE: How would you describe any differences that you may have in judicial philosophy with Chief Judge Garland?
JUDGE NEIL GORSUCH: I would leave that for others to characterize. I don’t like it when people characterize me, and I would not prefer to characterize him. He can characterize himself.
SEN. SHELDON WHITEHOUSE: What’s interesting is that this group sees a huge difference between you that I don’t understand. The dark money group that is spending money on your elections spent at least $7 million against him getting a hearing and a confirmation here, and indeed produced that result by spending that money. And then, now, we have $10 million going the other way. That’s a $17 million delta. And for the life of me, I’m trying to figure out what they see in you that makes that $17 million delta worth their spending. Do you have any answer to that?
JUDGE NEIL GORSUCH: You’d have to ask them.
SEN. SHELDON WHITEHOUSE: I can’t, because I don’t know who they are. It’s just a front group.
AMY GOODMAN: Senator Sheldon Whitehouse went on to ask about billionaire Philip Anschutz, who has close ties to Judge Gorsuch.
SEN. SHELDON WHITEHOUSE: If a question were to come up regarding recusal on the court, how would we know that the partiality question in a recusal matter had been adequately addressed if we did not know who was spending all of this money to get you confirmed? Hypothetically, it could be one individual. Hypothetically, it could be your friend, Mr. Anschutz. We don’t know, because it’s dark money. Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort and we don’t know who’s behind it?
JUDGE NEIL GORSUCH: Senator, there’s a lot about the confirmation process today that I regret.
AMY GOODMAN: Still with us is Kristen Clarke, president and executive director of Lawyers’ Committee for Civil Rights Under Law—she’ll be testifying Thursday before the Senate Judiciary Committee—and Elliot Mincberg, senior fellow at People for the American Way, former chief counsel for oversight and investigations of the House Judiciary Committee. Elliot Mincberg, what about this issue of dark money? It also goes to issues, for example, of Citizens United, but even the campaign—it might shock people to know what’s happening now—$10 million around Judge Gorsuch.
ELLIOT MINCBERG: Well, I think Senator Whitehouse was asking those questions particularly to highlight the significance of Citizens United and, in part, of Gorsuch’s refusal to state what he thinks about that decision, just as he refused to state what he thinks about virtually any other decision by the Supreme Court. And what I think the main point is, is that as a result of Citizens United, we don’t know anything at all about who’s made these contributions, who’s made these expenditures, more importantly, because the Supreme Court has ruled that we can’t find out and that—and that congressional attempts at action to do that are unconstitutional. And his illustrations perfectly show what is so dangerous about the Citizens United decision. Judge Gorsuch basically just shrugged his shoulders at all that and said, "That’s not my problem. That’s not my concern." And again, that’s not what we want on the United States Supreme Court.
AMY GOODMAN: Kristen Clarke, what is the Lilly Ledbetter Fair Pay Act? And what is, do you know, Judge Gorsuch’s views on it?
KRISTEN CLARKE: So, this is one of the most important federal laws that was passed during President Obama’s tenure. In fact, it was the very first federal law that he signed, in 2009. And it stands very simply for the principle of equal pay for equal work.
In two thousand—shortly after the law went into effect, there was a case that came before Judge Gorsuch, Almond v. Unified School District, and here we saw evidence, yet again, of Judge Gorsuch really narrowly interpreting civil rights laws, in truly the most narrow way possible. In that case, you had a group of employees who brought discrimination claims. They were transferred and demoted to jobs that paid less, conduct that would appear to violate the Lilly Ledbetter Fair Pay Act. And Mr. Gorsuch read the law very narrowly there and dismissed the claims, affirmed the decision to dismiss the claims as falling outside the scope of the text. In his view, the Lilly Ledbetter Fair Pay Act only made unlawful discriminatory compensation claims, and so this transfer and demotion of employees to a job that paid less fell beyond the scope of the law.
It’s emblematic of Judge Gorsuch’s view to civil rights generally. He is not somebody who brings a broad view of civil rights. He is not someone who appears to understand the scope of discrimination that we continue to wrestle with in our country today. And so, one of my hopes is that we see the Senate really probe deeply into Judge Gorsuch’s view on the enforcement powers of Congress under the 14th and 15th Amendment, for example. We need a justice on the Supreme Court who understands the reality that we face today, and that is one in which discrimination, sadly, is alive and well.
AMY GOODMAN: I want to turn to Illinois Democratic Senator Dick Durbin questioning Judge Gorsuch about LGBTQ rights.
SEN. DICK DURBIN: And what about LGBTQ individuals?
JUDGE NEIL GORSUCH: Well, Senator, there are—what about them?
SEN. DICK DURBIN: Well, the point I made is—
JUDGE NEIL GORSUCH: They’re people.
SEN. DICK DURBIN: Oh, of course.
JUDGE NEIL GORSUCH: And, you know.
SEN. DICK DURBIN: But what you said earlier was that you have a record of speaking out, standing up for those minorities who you believe are not being treated fairly. Can you point to statements or cases you’ve ruled on relative to that class?
JUDGE NEIL GORSUCH: Senator, I’ve tried to treat each case and each person as a person, not a "this kind of person," not a "that kind of person." A person. Equal justice under law is a radical promise in the history of mankind.
SEN. DICK DURBIN: Does that refer to sexual orientation, as well?
JUDGE NEIL GORSUCH: Senator, the Supreme Court of the United States has held that single-sex marriage is protected by the Constitution.
AMY GOODMAN: Kristen Clarke, your response to his answer to Dick Durbin?
KRISTEN CLARKE: So, you know, there’s a 2005 article that Judge Gorsuch wrote in the National Review. It’s called "Liberals’N’Lawsuits." And in that article, Judge Gorsuch claims that American liberals have become obsessed with using the courtrooms as a place to vindicate their rights; they should be looking to elected officials. And I find that view deeply problematic.
Throughout our nation’s history, when we look at the role of the Supreme Court, this has been the place where we have seen rulings that have helped to transform our nation and breathe life into the Constitution’s text. This is the place where the battle against school desegregation played out. This is the place where battle over interracial marriage and whether it’s legal has played out. And this is the place where marriage equality, where that battle was fought and won.
It’s not clear to me that Judge Gorsuch appreciates the centrality of the Supreme Court as a forum of last resort for victims of discrimination in our country. I heard Judge Gorsuch’s response during that exchange yesterday. I’m sure that he appreciates that there will be cases that seek to chip away at the marriage equality ruling that came down from the Supreme Court. And I think that the Senate should continue to press Judge Gorsuch to truly understand whether he is fully prepared to uphold the precedents that have been set forth by the Supreme Court in some of these fragile areas.
AMY GOODMAN: The voting rights?
KRISTEN CLARKE: They’re battles that—
AMY GOODMAN: Voting rights, Kristen?
KRISTEN CLARKE: Voting rights is another one of those core areas. The perhaps most devastating ruling issued by the Supreme Court in the last decade was the Shelby County, Alabama v. Holder case, which gut a core provision, the heart, of the Voting Rights Act, the preclearance provision. We need to make sure that Judge Gorsuch is prepared to uphold what’s left of the Voting Rights Act. We need to understand whether Judge Gorsuch has a full appreciation for the fact that voting discrimination is alive and well across our country, and that the act, what remains of it, is our primary tool for fighting back against that discrimination.
I cited that 2005 article, which I think is troubling, and he tried to distance himself from some of the statements in the article during the hearing yesterday. But he claims that elected officials are where victims of discrimination should turn to when they’ve got a problem or encounter discrimination. Well, that doesn’t work if voting discrimination remains unchallenged. So, it’s my hope that as we move forward, that the Senate will probe deeply to solicit Judge Gorsuch’s views on our nation’s most important federal civil rights law, the Voting Rights Act.