6 Takeaways From Neil Gorsuch’s First Day of Questioning

By Published on March 21, 2017

President Donald Trump’s nominee for the Supreme Court, Neil Gorsuch, addressed multiple hot-button issues Tuesday during his first day of questioning before the Senate Judiciary Committee.

The controversial topics included abortion, religious liberty, gun rights, sexism, and Trump’s so-called travel ban.

Here are six takeaways from Gorsuch’s responses to questions from the committee’s Democrats and Republicans:

1. Abortion and Roe v. Wade

Sen. Dianne Feinstein, D-Calif., asked Gorsuch: “Do you view Roe as having superprecedent?”

The Supreme Court’s 7-2 decision in Roe v. Wade legalized abortion across the nation in 1973.

Gorsuch agreed it is, acknowledging that Roe has been “reaffirmed many times” by lower courts, but said he is not able to predetermine how he would rule in related cases.

Sen. Chuck Grassley, R-Iowa, chairman of the committee, asked Gorsuch whether the Supreme Court correctly decided Roe.

Gorsuch replied that while judges should respect precedent, that does not give him the freedom to project future decisions.

“I would tell you that Roe v. Wade, decided in 1973, is precedent of the United States Supreme Court,” Gorsuch said. “It has been reaffirmed … So a good judge will consider as precedent of the United States Supreme Court worthy as treatment of precedent like any other.”

He added:

If it looks like I’m giving hints or previews or intimations about how I might rule, I think that is the beginning of the end of the independent judiciary. … Respectfully, Senator, I have not done that in this process, and I’m not about to start.

2. Guns and the Second Amendment

Gorsuch faced questions about the Second Amendment, at one point responding, “Heller is the law of the land.”

In District of Columbia v. Heller, the Supreme Court overturned the virtual banning of handgun possession in Chicago and Washington, D.C., upholding the Second Amendment rights of Americans.

Feinstein pressed Gorsuch about whether he “agrees” with the late Justice Antonin Scalia’s opinion in the case, which upheld an individual’s right to bear arms but, she said, suggested some firearms could be outlawed.

Gorsuch responded:

Heller makes clear the standard that we judges are supposed to apply. The question is whether it is a gun in common use for self-defense, and that may be subject to reasonable regulation. That’s the test as I understand it. There is lots of ongoing litigation about which weapons qualify under those standards. And I can’t prejudge that litigation.

3. Sexism and Women’s Rights

Gorsuch addressed accusations from a former law student who claimed he had encouraged sexist hiring practices in the classroom.

The student in question, Jennifer Sisk, took one of the Supreme Court nominee’s classes at the University of Colorado Law School. In a letter sent to lawmakers Sunday night, she wrote that Gorsuch said “many” working women exploit employers when receiving maternity benefits.

The Daily Signal reported Monday that Sisk has close ties to the Democratic Party. She is a former political appointee of the Obama administration and worked for former Sen. Mark Udall of Colorado, a Democrat. In covering Sisk’s allegations, some media outlets did not initially disclose those ties.

Questioned by Sen. Dick Durbin, D-Ill., Gorsuch — who said he first heard about the accusation the night before his hearings began — responded by saying he wanted to clear up a misunderstanding.

“I teach from a standard textbook … there is one question in the book that is directed at young women — because sadly, this is a reality that they sometimes face,” Gorsuch said.

“The problem is this: Suppose an older woman at the firm that you’re interviewing at asks you if you intend to become pregnant soon, what are your choices as a young woman?” Gorsuch asked rhetorically. “You can say yes, and tell the truth … and not get the job and not be able to pay your debts [from law school]. You can lie, maybe get the job, say no, that’s a choice too, it’s a hard choice. Or you can push back in some way, shape or form.”

4. Religious Freedom and Hobby Lobby

Gorsuch spoke favorably of protecting religious liberty in cases such as the Supreme Court’s Hobby Lobby decision in 2014.

“Hobby Lobby came to court and said, ‘We deserve protections too. We’re a small, family-held company …,’” Gorsuch said

of the retail chain. “They exhibit their religious affiliations openly in their business.”

The Supreme Court ruled 5-4, as The Daily Signal reported, that the government can’t compel a “closely held” business such as Hobby Lobby to cover abortion-inducing drugs or devices in employee health plans if doing so would violate the employer’s moral and religious beliefs.

Gorsuch credited liberal Democrats for their role in proposing, passing and enacting the Religious Freedom Restoration Act (RFRA), which was signed into law by President Bill Clinton in 1993.

He said RFRA, whose sponsor in the House was then-Rep. Chuck Schumer, D-N.Y., helped inform his judgment on matters relating to religious freedom, including the Hobby Lobby case.

Schumer is now among Gorsuch’s critics as Senate minority leader. Gorsuch was part of the 5-3 majority on the 10th U.S. Circuit Court of Appeals that ruled for Hobby Lobby before the case went to the Supreme Court.

In his opinion supporting the retail chain, Gorsuch wrote:

It is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct. Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect.

Schumer, along with Sens. Orrin Hatch, R-Utah, and Edward Kennedy, D-Mass., “wrote a very very strict law,” Gorsuch said. “And it says that any sincerely held religious belief cannot be abridged by the government without a compelling reason.”

“I have applied that same law, RFRA,” he added, “to Muslim prisoners in Oklahoma, to Native Americans who wished to use an existing sweat lodge in Wyoming, and to Little Sisters of the Poor.”

Because Congress previously “has defined ‘person’ to include corporation,” Gorsuch said, it was lawful to afford Hobby Lobby religious freedom protections.

“So you can’t rule out the possibility that some companies can exercise religion,” Gorsuch said, adding, “And of course we know churches are often incorporated and we know nonprofits, like Little Sisters or hospitals, can practice religion.”

5. Trump’s ‘Travel Ban’

When Sen. Patrick Leahy, D-Vt., asked how he would rule on cases such as Trump’s executive order temporarily restricting travel from seven terrorism-prone nations, Gorsuch said it would be “improper” for him to comment.

“I’m not going to say anything here that would give anybody any idea how I’d rule in any case like that that could come before the Supreme Court or my court at the 10th Circuit,” Gorsuch said, adding:

It would be grossly improper of a judge to do that. It would be a violation of the separation of powers and judicial independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they’d rule in a case that’s currently pending and likely to make its way to the Supreme Court.

Leahy’s question attempted to get Gorsuch’s opinion on Trump’s revised executive order to impose the temporary travel restrictions on residents of six countries the Obama administration and Congress had designated as posing risks of terrorism.

6. ‘No Man is Above the Law’

Throughout the day, Gorsuch reiterated his personal convictions about equal justice under the law, and said no person should ever receive preferential treatment.

“No man is above the law,” Gorsuch said more than once, responding to Democrats’ suggestions that he could not be independent of Trump.

After nearly 10 hours of testimony Tuesday, Gorsuch was expected to continue answering questions from the Judiciary Committee through Wednesday.


This report rounds up earlier reports by The Daily Signal on the second day of Gorsuch’s confirmation hearings.

Copyright 2017 The Daily Signal

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