Buckle up. Day Two of confirmation hearings for Neil Gorsuch has begun, and it’s going to be a long one.
Senators on the Judiciary Committee get their first chance to publicly ask him question, and Democrats are expected to grill the Supreme Court nominee.
The hearing will likely last more than 10 hours.
“There’s no such thing as a Republican judge or a Democratic judge. We just have judges,” Gorsuch said in his first answer to the panel.
Democrats on the attack
Sen. Sheldon Whitehouse, D-Rhode Island, said on CNN’s “New Day” that he’s looking to see if Gorsuch will prove that he won’t always side with the right-leaning justices and “that he will actually stand as an independent judge.”
Several senators signaled Monday their upcoming line of questioning by bringing up specific decisions or comments by Gorsuch that they didn’t like.
Minnesota Democrat Amy Klobuchar expressed concern about Gorsuch’s past criticism of a doctrine known as “Chevron deference.”
In the simplest terms, back in 1984, the Supreme Court held in Chevron U.S.A. Inc. v. Natural Resources Defense Council that when a law is ambiguous, courts must defer to the interpretation of a law adopted by the federal agency charged with enforcing that law, as long as the interpretation is reasonable.
Liberals in recent years have tended to support Chevron because when there is congressional gridlock, Democratic presidents have interpreted older statutes having to do with issues such as the environment and labor to allow them to implement broader protections. President Barack Obama was especially active on that front.
But Gorsuch has argued the doctrine gives agencies too much power to say what the law is, which is really the job of the courts.
Dianne Feinstein, the top Democrat on the committee, brought up a case in which a trucker was fired for abandoning his broken-down trailer in freezing temperatures to seek safety.
The trucker, Alphonse Maddin, filed a complaint asserting that his firing violated a federal safety law. In a 2-1 decision the 10th US Circuit Court of Appeals ruled in Maddin’s favor.
Gorsuch dissented. “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck,” Gorsuch wrote and noted that the company “fired him for disobeying orders and abandoning its trailer and goods.”
“It might be fair to ask whether TransAm’s decision was a wise or kind one,” he wrote. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
Gorsuch concluded it wasn’t. His dissenting opinion is something Democrats are likely to harp on to paint Gorsuch in a negative, less humane light.
Connecticut Democrat Richard Blumenthal also suggested that Gorsuch might have to go farther than other Supreme Court nominees have in explaining his position on Roe v. Wade — the landmark opinion that legalized abortion, in part because Trump announced that he was going to appoint “Pro-life judges.”
“If you fail to be explicit and forthcoming and definite in your responses, we have to assume that you will pass the Trump litmus test,” Blumenthal warned.
Leonard Leo, an attorney currently on leave from the conservative Federalist Society, who helped Trump pick the nominee, called Blumenthal’s potential question “far-reaching and dangerous.”
“The President never sought promises from the judge on future cases, and Judge Gorsuch never made any,” Leo added. “Judge Gorsuch can’t make these promises on how he might rule.”