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By Kevin Daley
Judge Neil Gorsuch will appear before the Senate Committee on the Judiciary beginning Monday, as the panel mulls whether to recommend his nomination to the full Senate.
Thus far, Gorsuch has glided through the nomination process. His glittering resume, which now bears the “well-qualified” imprimatur of the American Bar Association, has foreclosed several lines of attack for Senate Democrats, who have spent weeks fumbling for a strategy to block a confirmation that looks increasingly certain.
It’s difficult to overstate the aimlessness that has characterized the Senate Democratic caucus with respect to the Gorsuch nomination. As recently as last Wednesday, California Sen. Dianne Feinstein, the ranking Democrat on the Judiciary committee, told The Huffington Post she wasn’t sure what topics she planned to press Gorsuch on during the hearings. The chamber’s number two Democrat, Sen. Dick Durbin, brought the caucus’ unfocused improvisation into sharp relief when he told reporters the caucus had elected to wait until the hearings to formulate a unified position with respect to the nomination.
Though it seems unlikely this week will present the bruising ideological confrontations of confirmations past — given the general Democratic malaise — expect the following issues to feature prominently in the hearings.
Corporations and Campaign Finance
Democratic messaging on the Gorsuch nomination began to emerge just last week. Senate leadership launched something of a salvo during events on Tuesday and Wednesday in the Capitol, characterizing Gorsuch as a callous jurist who consistently aligns himself with powerful constituencies.
“Obviously, the social issues are always looming out there with any justice,” Senate Minority Leader Chuck Schumer said. “But where [Gorsuch is] particularly vulnerable is in this anti-worker, pro-corporate record.
Democrats have flagged three cases in particular as dispositive of a harsh judge unsympathetic to needy plaintiffs. In one case, Gorsuch voted against a truck driver for abandoning his vehicle during inclement weather. He has also written or joined opinions ruling against a family seeking federal compensation for costs accrued educating their disabled child, and a professor who lost her job after taking medical leave to recover from cancer.
Two of these three rulings were unanimous decisions joined by Democratic appointees. The third, which concerns the truck driver, implicated the supposed vagueness of the word “operate” in a statute relevant to the case. The facts particular to this litigation inspire sympathy for the truck driver, but as Harvard Law School professor Noah Feldman explains, there’s little about Gorsuch’s conclusion which isn’t legally defensible.
In this vein, the mobilization of outside groups in support of Gorsuch’s confirmation is also likely to solicit questions about corporate political activity and campaign finance laws generally. The largest of these efforts is coordinated by the Judicial Crisis Network, a conservative advocacy group that put $10 million behind a national campaign to get Gorsuch confirmed. A recent New York Times profile shows that the group’s financiers are largely unknown.
“We can use these hearings to put the spotlight on big special interests,” said Rhode Island Democratic Sen. Sheldon Whitehouse. “The test for Gorsuch is: is he willing to disassociate himself from them? In my view, the burden is on him to persuade us of that fact, particularly given that big special interests are spending tens of millions in dark money to try to help him get on the court.”
Life and Religious Liberty
Gorsuch’s record on the bench is scant on abortion-rights cases. His Oxford doctoral dissertation, however, which later became his book “The Future of Assisted Suicide and Euthanasia” offers some hints as to his view of life issues. Expect Democrats to quote liberally from the text, much of which was written under the supervision of Oxford professor John Finnis, the cerebral champion of natural law theorists.
In the book, Gorsuch explicitly states that the taking of a human life by a private person is always wrong. Though this is surely enough for Democrats to make trouble, as Reason’s Damon Root points out, he also evinces skepticism of the idea the courts should rely on the 14th Amendment’s due process clause to defend rights not specifically announced in the Constitution. This position, if it is in fact his, could implicate a broad range of rights the courts have identified.
Many conservative and libertarian jurists and scholars approach this question, called unenumerated rights, from complex perspectives which do not easily lend themselves to polar categorizations. In fact, the extent to which this issue divides conservatives and libertarians among themselves is not widely understood in media. Still, it’s an appealing line of attack for Democrats, as it suggests a skepticism of rights to medical privacy or same-sex marriage.
And its an approach to the nomination that seems most accurately calibrated to the current political environment, where a furious identity-leftism generates most of the energy in the Democratic party. If energizing these voters is a priority for Democrats scrutiny of Gorsuch’s robust defenses of religious liberty seems sensible.
As Slate’s Dahlia Lithwick writes, Gorsuch takes a capacious view of religious liberty, even as compared to his would-be predecessor, the late Justice Antonin Scalia.
Take the following example: Gorsuch wrote a concurring opinion in the 10th Circuit’s review of Hobby Lobby Stores v. Sebelius, which asked the court to decide if the 1993 Religious Freedom Restoration Act allows a closely held for-profit company to deny its employees contraceptive coverage based on religious objections. The case was later heard by the Supreme Court.
His concurring opinion tracked the problem of complicity, and argued the lower court had given insufficient (and statutorily required) credence to the fact the company’s owners felt any sort of participation in a contraception regime violated their religious beliefs. Gorsuch argued the courts should accommodate a religious adherent’s sincere assertion that a certain act implicates them in immorality, and that the empirical or scientific accuracy of their claims was not the proper subject of judicial inquiry.
“It is simply not a defense of religious liberty to accept, without question, a religious adherent’s beliefs as if they are judicially determined facts, especially if those beliefs contradict empirical fact and even more so when they create tangible suffering for others,” Lithwick writes. This is the sort of argument that seems far more potent given current political realities. But it’s also a dangerous argument, as it largely validates the fears of conservative religious adherents, who rallied around Trump in hopes of saving the courts from thorough-going secularist judges disinterested in their conscientious objections. Still, expect it to get some attention from committee Democrats.
Gorsuch briefly served in the U.S. Department of Justice during the George W. Bush administration, where he was involved in shaping legal guidance supplementing the government’s national security policies. In this capacity, he advised the administration on the detention of enemy combatants at the U.S. naval facility in Guantanamo Bay, Cuba.
Several documents produced by the Justice Department in connection with the nomination are sure to elicit questions, particularly from Feinstein, who is intensely interested in detention issues and was a leading critic of Bush-era detention policies at Gitmo.
In one letter he wrote to the base’s commander, Gen. Jay Hood, after visiting Guantanamo Bay, Gorsuch said that he was “extraordinarily impressed” with the standards and professionalism of the installation and its servicemen.
In another internal email, he suggested the judges of the U.S. Court of Appeals for the D.C. Circuit would be more sympathetic to the Justice Department in detention cases if the administration invited them to visit Gitmo.
“If the DC judges could see what we saw, I believe they would be more sympathetic to our litigating positions,” he wrote.
“A visit, or even just the offer of a visit, might help dispel myths and build confidence in our representations to the Court about conditions and detainee treatment,” he added.
The confirmation hearing will begin on Monday on Capitol Hill at 11:00 am. In addition to Gorsuch’s testimony, five panels of expert witnesses will offer remarks over the course of the next week.
The committee will vote on Gorsuch’s nomination at the conclusion of these hearings, following a vote of the full Senate.