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How does Neil Gorsuch wield originalism in his decisions?

In Judge Neil Gorsuch’s third day of questioning, Democratic senators pressed the Supreme Court nominee on how he interprets the Constitution as well as the effect of partisan politics on the court. Judy Woodruff analyzes today’s hearing with Marcia Coyle of the National Law Journal, Amy Howe of Scotusblog.com, Ilya Shapiro of the Cato Institute and Pam Karlan of Stanford Law School.

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    But, first, a look at the third day of Supreme Court confirmation hearings and what more we learned about Neil Gorsuch.

    Joining me at the table tonight, PBS NewsHour hour Supreme Court analyst Marcia Coyle of The National Law Journal, Amy Howe, editor of SCOTUSblog.com. Pam Karlan, she's a professor of law at Stanford University. She worked in the Justice Department during the Obama administration. And Ilya Shapiro, he's a senior fellow in constitutional studies at the Cato Institute. It's a libertarian think tank.

    And welcome all of you back to the NewsHour.

    I want us to start by listening to something that Senator Dianne Feinstein had to say. She pressed Judge Gorsuch on his views about how to interpret the Constitution. And she expressed some concern over what he said before on the importance of Supreme Court precedent.

    Let's listen.


    We talked about precedent. And what's happened is, every Republican-appointed judge has gone back and is a no vote. So, how does — how does one look at you? For the life of me, I really don't know, when you're there, what you're going to do with it.

  • NEIL GORSUCH, Supreme Court Nominee:

    Senator, all I can do is — I can't promise you how I would rule in a particular case. That would be deeply wrong to sit here at a confirmation table.

    And I think we agree on that, that it would be a violation of the independent judiciary for a nominee to a court to make a promise on any case in order to win confirmation.


    Are you an originalist?


    I'm happy to be called that. I do worry about the use of labels in our civic discussion to sometimes ignore the underlying ideas, as if originalism belonged to a party. It doesn't. As if it belonged to an ideological wing. It doesn't.


    Well, here's what I say about originalism. Whether you like it or not, is it bound by the law?


    Of course it is. It's the whole point of how you interpret the law.


    Now, to those who believe the Constitution is a living, breathing document that can speak to you and nobody else, that bothers me. The bottom line is, there are different ways of looking at the role of being a judge. Do you believe that your way of looking at being a judge has stood the test of time?


    I do.


    So, Marcia Coyle, what did we learn about Judge Gorsuch from this?

  • MARCIA COYLE, The National Law Journal:


    Well, I think two things were going on here in the exchange, particularly with Senator Feinstein. First of all, she was trying to get at, what kind of originalist is Judge Gorsuch?

    They're not all the same. And, in fact, Justice Scalia, who was a self-proclaimed originalist, often said that Justice Clarence Thomas was the only true originalist on the Supreme Court. So, she was trying to get a sense of him and also her concern about precedent.

    I mean, it is true every Supreme Court nominee has testified to respect for precedent. But precedents, old decisions, do get overruled. The question was, what factors do you use, can you justify upsetting the law by overruling an old decision?

    And Judge Gorsuch did lay out the factors multiple times, even though he won't commit to not overruling a specific case.


    Pam Karlan, what did you take away from this?

  • PAM KARLAN, Stanford Law School:

    Well, here's what was interesting. He did commit to not overruling Brown against Board Of Education. He said that case was correctly decided. He did commit to not overturning Griswold about the right of married couples to use contraception.

    But he refused to commit to the same idea with regard to cases like Roe or cases like Lawrence. And there's no honest originalist who really can say that the people who ratified the 14th Amendment in 1868 thought that it protected gay people, given that the same people who ratified that amendment all prohibited sodomy in their states.

    So, I think he gave us a very clear sense of what kind of an originalist he was today in the way he answered questions about different lines of precedent.


    Ilya Shapiro?

  • ILYA SHAPIRO, Cato Institute:

    Well, Pam, I'm an honest originalist. At least I try to be. And I would say that the 14th Amendment does protect gay rights in various ways.

    I filed briefs supporting the challengers in Obergefell and all the others. The Cato Institute has long been about that, because you have to understand that you do originalism at the right time. You're not looking into the brains, into minds of the people that were enacting it or ratifying it. You look at the words.

    And what did the words mean at the time? Equal means equal, just like you don't have to update the Constitution to apply the Interstate Commerce Clause to airplanes or the Internet, because that's interstate commerce.



    Amy Howe, I'm going to come to you to ask you to adjudicate this.


  • AMY HOWE, SCOTUSblog.com:

    Well, I think that this is really sort of a bigger picture issue, which is that the senators, the Democrats senators, are trying to get more information about Gorsuch.

    And, you know, Donald Trump said he wanted to appoint justices in the mold of Scalia and Clarence Thomas. And the Democratic senators are trying to figure out, well, you know, what makes him think that? You know, OK, and there's originalism, but what kind of originalism — originalist are you?


    All right, there's something else I want you all to listen to.

    During his campaign, we know that then-candidate Donald Trump promised to appoint justices with similar philosophies to himself and to Justice Antonin Scalia.

    Now, Democratic Senator Patrick Leahy questioned — today questioned Judge Gorsuch on where his views are.


    Mr. Priebus said you have the vision of Donald Trump, and, by nominating you, Donald Trump was talking about changing potentially 40 years of law, suggesting you are coming in as a Trojan horse.

    What vision do you share with President Trump?


    Senator, I mean, no disrespect to any other person in saying, they don't speak for me. And I don't speak for them.

    You know, I have great admiration for Justice Scalia, as we have talked about. I have admiration for every member of this committee and for the president of the United States, for the vice president of the United States.

    But, respectfully, none of you speaks for me. I speak for me. I am a judge. I am independent. I make up my own mind.

  • SEN. RICHARD DURBIN, D-Ill., Minority Whip:

    Judge, in eight out of 10 cases that came before you, you ruled against the students with disabilities.



    I'm sure they were unanimous panels. And to suggest that I have some animus against children, Senator, would be mistaken.


    Judge, please. I'm not suggesting that.

    You are — what I'm basically saying to you is, I can only look at your court opinions, the words you write, because, like many nominees, you are careful in your testimony before us. You have told us time and again, no place for my heart here. This is all about the facts. This is all about the law.

    I don't buy that. I don't think that the decisions of courts are so robotic, so programmatic that all you need to do is to look at the facts and look at the law and there's an obvious conclusion. If that were the case, there would never be a dissent.


    Amy Howe, do we — what do we take away from this? This was about whether Judge Gorsuch sees people as human beings, or is he blindly following the law, it seemed?


    Well, what I would say, I think maybe what Durbin was trying to say — and maybe it was just inartfully phrased — is — and he had something there, the idea Judge Gorsuch keeps saying, I'm a judge. I apply the laws to the facts.

    But it's not always that easy, particularly when you get to the Supreme Court. Cases get to the Supreme Court because they're hard. And as Senator Durbin said, if it were that easy, a computer could do it, there would be no dissents.

    And so what he was, I think, trying to get at was, you know, like, when there's a gray area, what else are you going to bring to the table?


    What do you take away from all this, Ilya Shapiro?


    Well, I look at it another couple of changes during the day's questioning with Al Franken about arbitration, and then with Ben Sasse about the same topic.

    And this goes towards how some judges are simply more willing to bend the law to achieve a just result, because, otherwise, they don't like the result that they're getting. And Franken was talking about how arbitration provisions might go against the little guy.

    And then Ben Sasse said, well, I might agree with you in those cases that you're presenting. So we, senators, the Congress, should change those laws.

    And that's where the debate is. Sometimes, just reaching a result that seems unjust, that is an indication for Congress to change it.


    Pick up on that, Pam Karlan.


    Well, the question is what the interpretation of the Arbitration Act is.

    The current Supreme Court, with a Republican majority, has narrowed people's ability to get into court by reading a law that's been around since the 1920s more narrowly than the court used to.

    And so I think it's important to understand that laws can be read in a lot of different ways. They're not always absolutely clear. And judges have to bring judgment to those laws. And conservatives and liberals have very different views on how to read those laws. It isn't mechanical.

    Amy Howe is exactly right. And to the extent that judges suggest this is mechanical, with the kind of balls and strikes metaphors, or the I'm just a lawyer applying the — I'm just a judge applying the law, they're hiding what is often going on, which is the exercise of judgment about, what does a word like — a phrase like free and appropriate education in the Endrew case mean?


    Marcia Coyle?


    I tend to agree more with Pam, because I think that Senator Durbin was trying — if you had listened to the whole exchange, he was trying to find exactly that. Is this a judge who reads laws narrowly?

    In this particular case involving individuals with disabilities in education, the children, he focused on a word that Judge Gorsuch had in an opinion that appeared to narrow the standard for these children to get the help they needed in the — in public schools or outside of public schools.

    So, I think, again, this was an effort, even if not really direct and clear, to try to understand how Judge Gorsuch approaches the law.


    Now, in this final excerpt from today's hearing that I want to share, this was an exchange with Senator Sheldon Whitehouse, a Democrat, about a court decision on campaign finance.

    Now, Judge Gorsuch expressed concern about the idea of judges being political and the role of politics in the federal court. Let's listen.


    I'm distressed to hear you think that judges or the Supreme Court is an organ of a party. That, to me, is just — I know you feel that way. And that distresses me.


    It distresses me, too, quite a lot.


    And I just don't …

  • SEN. BEN SASSE, R-Neb.:

    Most people aren't watching these hearings. And most people are going to see some headline summary of what happened.

    If they see something that looks like Republicans voted one way and Democrats voted another way, and they have echoing in their ears the sounds of people saying that you are some sort of a shill for big business, and that the American people should be scared of you, we will have in this body done something to further erode the public trust.

    And so I sincerely hope that my colleagues on the other side of the aisle, as they approach voting, will recognize that the audience after they vote isn't just people in their next primary who want to see a greater politicization of every question in American life.


    So, I'm going to come to you, Ilya Shapiro.

    Did we come away from at least from what we heard so far thinking these courts are more political than ever because of the kinds of questions and answers we're hearing?


    Well, I'm not sure.

    I think we come away thinking the senators are more political even than we possibly could have imagined. It was a very fraught hearing in that way.

    But if you look at the actual facts, at the Supreme Court, the Democratically appointed justices vote together more often, certainly in the controversial cases, than the Republican-appointed ones. We always talk about, will Kennedy go one way or another? Will Roberts do another Obamacare vote of a certain kind?

    There's much less debate about, will Sotomayor defect or what crazy thing will Breyer come up with these days? So, I think there's just a lot of intellectual fervent on the right. It's — and so that's what gives people — turns them on or turns them off the court.


    Marcia Coyle, are we picking up more from listening to these exchanges about whether we should be reading politics into so much of what the Supreme Court does?


    Well, I think everybody has to not be naive about what the Supreme Court does.

    The Supreme Court is a political institution. The justices are there through a political process. But what you have to step back and think about is, are the justices, when they make decisions, acting in a partisan way? And that's where, at least I still believe, that the institution is not partisan.

    I remember, during today's hearing, Senator Graham being very frustrated and saying, gee, when Justice Scalia went through here, it was 97-0. When Justice Ginsburg, a Democratic appointee, went through here, it was 93 or 96-0. What has happened?

    Well, I think both I think the executive branch and the legislative branch share the blame. Republicans and Democrats share the blame. The way this particular vacancy has been handled has really upped the political stakes. And there's a cost.

    There's a cost to Judge Gorsuch, who has had to set — prove his independence. And then there's a cost to the institution of the Supreme Court.


    Pam Karlan, where do you come down on just how political this whole thing is?


    I don't think this is so much political, as it is fundamental disagreements in America about what our Constitution means and about how to interpret it.

    And those map on sometimes to partisan divisions, but I think they're bigger than that. And it's a profound moment in our constitutional history.


    Amy Howe, you get the last word on the politics of this whole thing.


    Well, I tend to agree with Marcia that there's politics at the court, but not necessarily partisanship.

    But I do think, you know, Senator John Kennedy of Louisiana kind of went off-message today. He told Gorsuch that: Many of my constituents voted for Trump because of the Supreme Court.

    And that's why Trump put out the list that Gorsuch was on, was to try and get …


    During the campaign.


    During the campaigns — to get the votes of social conservatives, to reassure them that he was going to appoint someone that would make them happy.


    And you're saying that wasn't the message that maybe they intended to get out there.


    That is certainly not the message that Judge Gorsuch was advancing today.


    All right, we did — today was the second day. And it looks like they may go in tomorrow. We're waiting to see how much longer things go tonight.

    We are going to be back with the four of you tomorrow. And we thank you all very much. Amy Howe, Pam Karlan, Marcia Coyle, Ilya Shapiro, thank you.


    Thank you.


    Thanks, Judy.


    Thank you.

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