In addition to the physically taxing experience of sitting through more than 10 hours of interrogation at his Senate confirmation hearing Tuesday, Supreme Court nominee Neil Gorsuch had to endure many questions that were silly or downright dumb.
Such is the price to be paid for a lifetime appointment to one of the nation’s most powerful positions.
“If the Democrats won’t give the president 60 votes for Neil Gorsuch, then there is no Republican Supreme Court nominee they will ever support.”
The queries ranged from gotcha questions about cases that Gorsuch could not possibly answer to the repetitive — there are only so many different ways the appeals court judge could give a response to a question about a trucker’s lawsuit — to attempts to smear the nominee with the words of other people.
Gorsuch’s supporters gave his performance a thumbs up. Leonard Leo, an adviser to President Donald Trump who is on leave from the Federalist Society, argued that Gorsuch should easily clear the 60-vote threshold to avoid a possible filibuster.
“If the Democrats won’t give the president 60 votes for Neil Gorsuch, then there is no Republican Supreme Court nominee they will ever support,” he said in a prepared statement.
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Democrats on the Senate Judiciary Committee might come to a different conclusion. Based on suggestions from legal scholars and conservative political activists, here are some of the dumbest questions senators asked:
The questioner: Sen. Dick Durbin (D-Ill.).
The issue: Durbin employed a classic guilt-by-association tactic by confronting Gorsuch with controversial statements made by people he has worked with over the years. He noted that retired Oxford University professor John Finnis, who was Gorsuch’s dissertation supervisor, wrote in 2009 that the English people had “largely given up … bearing children at a rate consistent with their community’s medium-term survival” and that it was causing its “own replacement as a people” and that European countries in the 21st century were on a “trajectory of demographic and cultural decay.”
The question: “Do you feel that what Professor Finnis wrote about purity of culture and such is something that we should condemn or congratulate?”
The answer: Gorsuch said he would want to read the entire writing and not just hear excerpts before passing judgment. “And Senator, I’ve had a lot of professors,” he said. “I’ve been blessed with some wonderful professors. And I didn’t agree with everything they’ve said, and I wouldn’t expect them to agree with everything I’ve said.”
The questioner: Sen. Amy Klobuchar (D-Minn.).
The issue: Klobuchar pressed Gorsuch about his views on originalism, a concept in which judges adhere to the strict meaning of the Constitution when it was written.
The question: “So when the Constitution refers, like, 30-some times to ‘his’ or ‘he’ when describing the president of the United States, you would see that as, well back then, they thought a woman actually could be president of the United States even though women couldn’t vote?”
The answer: “I’m not looking to take us back to quill pens and horses … Of course women can be president of the United States. I’m the father of two daughters. And I hope one of them turns out to be president.” In response to a similar question about the Air Force, which did not exist at the time of the Constitutional convention, he said, “Senator, I think the generals of the Air Force can rest easy.”
The questioner: Sen. Sheldon Whitehouse (D-R.I.).
The issue: So-called “dark money” in politics, which followed the Supreme Court’s Citizens United decision that struck down limits on political spending by independent groups that were not connected to candidates. Whitehouse took umbrage to Gorsuch’s suggestion that the ruling does not mean the court was inserting itself into politics.
The question: “Do you really think that a Supreme Court that decided Citizens United doesn’t get involved in politics?” He followed up: “What could be more involved in politics that opened this ocean of dark money that’s flooded into our politics?”
The answer: Gorsuch explained that Congress had broad authority to pass further laws on campaign finance. Lawmakers could impose new requirements that outside groups disclose donors, for instance. “Senator, I think every justice on the Supreme Court of the United States is a remarkable person trying their level best to apply the law, faithfully.”
The questioner: Sen. Al Franken (D-Minn.).
The issue: Gorsuch’s by now well-known dissent in the TransAm Trucking v. Administrative Review Board case. The 10th U.S. Circuit Court of Appeals ruled last year that the company had to rehire a trucker who had been fired for leaving a malfunctioning rig in freezing weather. Several senators have browbeat the nominee already for his dissent, but Franken couldn’t resist taking another pass Tuesday.
The question: Referring to testimony that the driver was suffering hypothermia and that the brakes were failing, the senator said, “I don’t think you’d want to be on the road with him, would you, Judge?”
The answer: Gorsuch said he does not blame the driver for doing what he did and added that he empathizes with him but explained — again — that his dissent was based on the language of the statute, which protected a worker from dismissal for refusal to operate an unsafe vehicle. But the driver did operate the truck, he said. Gorsuch also explained that Franken incorrectly described the doctrine of absurdity, which the senator had argued allowed for a departure from applying the statute as literally written. The judge said that neither side in the case even raised that issue. “And it usually applies when there’s a scrivener’s error, not when we just disagree with the policy or the statute,” he said.
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The questioner: Sen. Al Franken (D-Minn.).
The issue: More guilt by association. Franken referred to comments by White House Chief of Staff Reince Priebus at the Conservative Political Action Conference that Gorsuch could mean the “change of potentially 40 years of law.” At the same conference, White House strategist Stephen Bannon contended that the administration’s goal was the “deconstruction of the administrative state.”
The question: “What do you think that Mr. Priebus was talking about? Do you think he was saying that you’d be in a position to shape the court’s decisions for 40 years? Or was he suggesting that you could reach back 40 years?” About Bannon, he asked if the comments applied only to Cabinet nominees. “Or do you think the administration also sees a role here for it’s judicial nominees?”
The answer: Gorsuch said he could not speak for others. “Respectfully, Senator, Mr. Priebus doesn’t speak for me, and I don’t speak for him,” he said. He had a similar to response to the Bannon question: “Respectfully, that’s a question best posed to Mr. Bannon.”