After taking heat from Democratic senators Monday for his supposed bias against the “little guy,” Supreme Court nominee Neil Gorsuch arrived at his Senate confirmation hearing Tuesday armed with examples to the contrary.
Gorsuch offered the examples during an interrogation from Sen. Dianne Feinstein (D-Calif.). The ranking Democrat on the Senate Judiciary Committee expressed frustration over Gorsuch’s refusal — standard practice for judicial nominees — to comment on Supreme Court decisions and cases that might again come to the court.
“Respectfully, I suggest that does not represent the body of my work.”
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“Then how do we have confidence in you that you won’t just be for the corporations, that you will be for the little man?” she asked.
Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals in Denver, noted that critics have referenced cases, including one in which he dissented from a ruling in favor of a trucker who lost his job when he refused to stay in a malfunctioning rig in freezing weather.
“Respectfully, I suggest that does not represent the body of my work,” he said.
Gorsuch said he has participated in 2,700 opinions over 10 1/2 years. He pointed to some of them:
- Utes Indian Tribe v. Utah. He wrote the opinion in 2015 in favor of the tribe in a long-running legal battle with the state over jurisdiction.
- The Rocky Flats case. He joined the majority in a case in 2015 in which the court ruled in favor of plaintiffs who alleged that plutonium waste from a nuclear weapons plant had contaminated their land.
- Energy and Environment Legal Institute v. Epel. The court in 2015 upheld Colorado’s Renewable Energy Standard.
- United States v. Magnesium Corp. of America. The court in 2010 upheld the Environmental Protection Agency’s reinterpretation of the a regulation under the Resource Conservation and Recovery Act governing mineral processing waste.
- Orr v. City of Albuquerque. The court in 2008 reversed a lower court decision dismissing a suit by city police officers who claimed discrimination based on pregnancy.
- Williams v. W.D. Sports. In 2005, the court reversed a lower court decision tossing out a lawsuit by several former employees of the New Mexico Scorpions, a minor league hockey team, who had alleged sexual harassment. The appeals court ruled that the plaintiffs were entitled to a trial on their claim of retaliation.
- Casey v. West Las Vegas Independent School District. The court in 2006 ruled that a longtime public employee in New Mexico was entitled to a trial in her claim of retaliation based on her First Amendment rights.
- Simpson v. University of Colorado, Boulder. In 2006, the appellate court reversed a lower court ruling dismissing a lawsuit by two women who alleged that football players and recruits sexually assaulted them in 2001. The appeals court ruled that there was sufficient evidence to suggest that the university “had an official policy of showing high school football recruits a ‘good time’ on their visits to the CU campus,” and that it “failed to provide adequate supervision and guidance to player-hosts chosen to show the recruits a ‘good time.'”
“I can give you a long, long list,” Gorsuch told Feinstein.
Later, under questioning from Sen. Orrin Hatch (R-Utah), Gorsuch cited three cases in which he sided with criminal defendants on Fourth Amendment challenges.
Gorsuch said that in eight cases in which he was in the majority that have gone to the Supreme Court, seven have been upheld. In cases in which he has dissented, he said, he has been about as likely to dissent from judges appointed by Republicans as Democrats.
Gorsuch was more circumspect about cases that might go to the Supreme Court. Feinstein tried hard to elicit answers on a host of Supreme Court precedents.
“I have to look the litigant in the eye in the next case,” he said. “And if I prejudge that case, they can look at me and say, ‘You’re not a fair judge.’ And I have no answer for that.”
Asked about whether the Roe v. Wade abortion decision is a “super precedent,” he acknowledged that, “It has been reaffirmed many times. I can say that.”
Gorsuch said both Justice Antonin Scalia’s majority opinion in the District of Columbia v. Heller decision finding an individual right to gun ownership and Justice John Paul Stevens’ dissent were examples of “originalism.” But he declined to say which opinion he agreed with.
“You’ve alluded to my problem here … I am not here to grade my bosses’ work. I think that would be impertinent of me,” he said. “It’s not a matter of agreeing or disagreeing. It’s a matter of what the law is.”
Gorsuch told Hatch that he would be independent from President Donald Trump and any other person or interest.
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“The bottom line, senator, from the bottom of my heart, is that I’m a fair judge,” he said. “A good judge doesn’t give a whit about politics.”