Neil Gorsuch confirmation hearings
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On January 31, 2017, President Donald Trump nominated Neil Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. All nominees to the U.S. Supreme Court are subject to the advice and consent of the United States Senate. Judicial nominations from the president are referred to the United States Senate Committee on the Judiciary. For the 115th United States Congress, which served from January 3, 2017, to January 3, 2019, the committee is composed of 11 Republican and nine Democratic senators.
The committee held confirmation hearings on Gorsuch's nomination from March 20-23, 2017. During the four-day hearing, committee members and the nominee read statements into the record, Gorsuch was questioned by members over two days, and a final day was reserved for outside witness statements.
When the hearings were completed, Gorsuch's nomination proceeded to a committee vote on whether to report the nomination to the full Senate for final confirmation. Section I, Rule 3 of the committee's rules for the 115th United States Congress states, "at the request of any member, or by action of the Chairman, a bill, matter, or nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later."
The committee chairman, Sen. Chuck Grassley (R-Iowa), placed a vote on Gorsuch's nomination on the committee's agenda for Monday, March 27, 2017, however Democratic members exercised a committee rule allowing for a one-week delay. The committee voted to report Gorsuch's nomination to the full Senate on Monday, April 3, 2017. Gorsuch was confirmed on a recorded 54-45 vote of the U.S. Senate on Friday, April 7, 2017. The U.S. Supreme Court held its final, two-week argument sitting of this term beginning on April 17, 2017. Gorsuch joined the court for those arguments.
Click on the tabs below for a look at each day's events during Gorsuch's confirmation hearings.
Day One (3/20/17)[edit]
Note: This page was last updated on March 20, 2017. It was written in real-time as events unfolded.
Introduction[edit]
Today marked the first day of confirmation hearings on Judge Neil Gorsuch's nomination to be an associate justice of the U.S. Supreme Court. Gorsuch was nominated to the Supreme Court by President Donald Trump (R) on January 31, 2017, to succeed Justice Antonin Scalia on the court. The hearings took place before the United States Senate Committee on the Judiciary. The committee, composed of 11 Republicans and nine Democrats, met for nearly five hours on the first day of hearings. The hearings reconvened on Tuesday, March 21, 2017, with testimony from Judge Gorsuch.
Chairman's welcome[edit]
U.S. Senator Chuck Grassley (R-Iowa) gaveled the committee into session at 11:00 a.m. this morning to begin confirmation hearings on the nomination of Judge Neil Gorsuch of the United States Court of Appeals for the 10th Circuit to be an associate justice on the Supreme Court of the United States. The chairman began the proceedings by outlining his expectations of when the committee might vote on Gorsuch's nomination. The senator stated that he would schedule a vote for next Monday, March 27, but that he expected the vote to be held over a week, as committee rules allow any member to push it back. That would place Gorsuch's nomination on the agenda for a committee vote on Monday, April 3, 2017. The Senate was scheduled to go on a two-week recess beginning April 7, 2017.
Senators' statements[edit]
Every senator on the committee read a statement into the record regarding the nomination. Links are taken from the Senate Judiciary Committeee website, from the senator's own website, or from other publicly available sources:
Other statements[edit]
U.S. Senators Cory Gardner (R) and Michael Bennet (D) of Colorado each read a prepared statement into the record. Former acting U.S. solicitor general Neal Katyal also read a prepared statement. Finally, the nominee himself read a statement into the record as well.
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Testiomny of Senator Cory Gardner (R-Colo.) |
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Testimony of Senator Michael Bennet (D-Colo.) |
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Testimony of Mr. Neal Katyal |
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Testimony of Neil Gorsuch |
Video of day one[edit]
A video of the first day of Judge Gorsuch's nomination is below (via The New York Times YouTube feed):
Day Two (3/21/17)[edit]
Note: This page was last updated on March 21, 2017. It was written in real-time as events unfolded.
Introduction[edit]
Today marked the second day of confirmation hearings on Judge Neil Gorsuch's nomination to be an associate justice of the U.S. Supreme Court. Today, Senate Judiciary Committee members began their questioning of the nominee. Each senator was allotted 30 minutes for questioning. A second day of questioning was to take place on March 22, 2017. Each senator would be given 20 minutes to question the nominee per the instructions of the committee chairman, Chuck Grassley (R-Iowa).
Themes from senators' questions[edit]
Every senator on the committee was given 30 minutes to question the nominee. Though a complete hearing transcript was not available from the Senate Judiciary Committee, below are some exchanges of note between the committee members and the judge from publicly available sources. A transcript will be provided on this page once it is available from the committee.[1][2]
The first question[edit]
Senator Grassley opened questioning of the nominee by asking the following question, "Describe what judicial independence means and whether you'd have any trouble ruling against the president who nominated you." Judge Gorsuch responded that the question was a softball and that he would have no difficulty ruling against any party based on what the law and the facts of the case required. Gorsuch also mentioned that there was no such thing a Democratic or Republican judge.
The role of precedent[edit]
Several senators throughout the day asked Judge Gorsuch about his views on specific precedents of the U.S. Supreme Court; in each instance, the judge declined to answer beyond his respect for the decisions as precedents of the U.S. Supreme Court. The judge, however, did give an assessment of the role that precedent plays in his judicial outlook. Senator Grassley noted that Judge Gorsuch was a co-author on a book about precedent and the senator gave some remarks on precedent. Gorsuch then gave an expanded answer to the chairman in response to the question, "What is the value of precedent in our legal system?" Judge Gorsuch responded,
| “ |
For a judge, precedent is a very important thing. We don't go reinvent the wheel, everyday. And that's the equivalent point of the law of precedent. And we have an entire law about precedent, the law of judicial precedent. Precedent about precedent, if you will. And that's what that 800-page book's about. It expresses a mainstream, consensus view of 12 judges from around the country appointed by, as you point out, presidents of both parties, great minds. Justice Breyer was kind enough to write a forward to it. It makes an excellent doorstop. And in it, we talk about the factors that go into analyzing precedent, any consideration of precedent. There are a bunch of them. You've alluded to some of them.
Those are all factors that a good judge will take into consideration when examining any precedent. You start with a heavy, heavy presumption in favor of precedent in our system. Alexander Hamilton said that's one important feature-I think it was Hamilton-said one important feature of judges: if we're gonna give them life tenure, allow them that extraordinary privilege, they should be bound down by strict rules and precedents. Francis Bacon called precedent the anchor of the law. So you start with that heavy presumption in favor of precedent. You consider those factors in that light. And, yes, in a very few cases, you may overrule precedent. It's not an inexorable command, the Supreme Court has said. That's the law of precedent as I understand it... [3] |
” |
Advising the Bush administration[edit]
Committee ranking member Dianne Feinstein (D-Calif.) asked Judge Gorsuch about his work in the U.S. Department of Justice, specifically his role in advising the administration on various policies related to enhanced interrogation techniques, including the Detainee Treatment Act, as well as Gorsuch's recommendation to the president to issue a signing statement-which the senator said that the judge helped to prepare-related to interrogation policies, such as the use of waterboarding, as well as other detention policies for detainees held at Guantanamo Bay, Cuba. Senator Feinstein referenced certain documents, including emails, attributed to Gorsuch. The senator and the judge agreed that, after the judge had a chance to review documents from Senator Feinstein, the senator would return to this line of questioning during her questioning time on Wednesday, March 22, 2017.
Video of day two[edit]
A video of the second day of Judge Gorsuch's nomination is below (via The New York Times feed on YouTube):
Day Three (3/22/17)[edit]
Note: This page was last updated on March 22, 2017. It was written in real-time as events unfolded.
Introduction[edit]
Today marked the third day of confirmation hearings on Judge Neil Gorsuch's nomination to be an associate justice of the U.S. Supreme Court. Today, Senate Judiciary Committee members resumed their questioning of the nominee. Each senator was allotted 20 minutes for questioning in what was described as the second round of questioning. A third round of questioning was held in a late afternoon session; senators who wished to question the nominee were limited to 15 minutes. At the end of the third round of questioning, Gorsuch's testimony was complete. A final day of hearings was to take place on March 23, 2017. Those hearings would be reserved for outside witnesses.
Themes from senators' questions[edit]
Every senator on the committee was given 20 minutes to question the nominee in a second round of questioning. A third round of questioning was held later in the day. Though a complete hearing transcript was not available from the Senate Judiciary Committee, below are some exchanges of note between the committee members and the judge from publicly available sources. A transcript will be provided on this page once it is available from the committee.[4][5]
A precedent overturned?[edit]
On March 22, 2017, while Judge Gorsuch's confirmation hearings were taking place before the Senate Judiciary Committee, the U.S. Supreme Court issued a unanimous ruling in Endrew F. v. Douglas County School District, vacating and remanding a judgment of a three-judge panel of the United States Court of Appeals for the 10th Circuit, the court on which Gorsuch currently sits. In the opinion, the Supreme Court held that the Individuals with Disabilities Education Act (IDEA) required schools to offer an individualized education plan (IEP) reasonably calculated to enable a child to progress that is appropriate in light of the child's circumstances. The court declined to create a uniform rule for determining the adequacy of the IEP, but noted that the adequacy of an IEP would depend on the circumstances of the child for whom the IEP was created.
Though Gorsuch did not sit on the appellate panel whose opinion was overturned by the Supreme Court, several senators, including Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), and Chuck Grassley (R-Iowa) referred to a 2008 case that Gorsuch did author in the same area of law, Thompson R2-J School District v. Luke P. In 1996, prior to Gorsuch being on the court, the Tenth Circuit ruled in Urban v. Jefferson County School District R-1 that, to comply with the IDEA, the educational benefits conferred by a school district to a qualifying student must be more than de minimis. According to Merriam-Webster's online dictionary, de minimis means "lacking significance or importance, so minor as to merit disregard."[6]
In 2008, in Thompson v. Luke P., Gorsuch appeared to modify this standard, concluding that the educational benefit mandated by the IDEA must merely be more than de minimis. The use of the term merely in the Luke P. case, and used as the standard in Endrew F., is what the U.S. Supreme Court appeared to strike down in their decision on March 22, 2017.
In an opinion by Chief Justice John G. Roberts, the court said that[7]
| “ |
for a child fully integrated in the regular classroom, an IEP typically should ... be 'reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.' ... The goals may differ, but every child should have the chance to meet challenging objectives. Of course this describes a general standard, not a formula. But whatever else can be said about it, this standard is markedly more demanding than the 'merely more than de minimis ' test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot. When all is said and done, a student offered an educational program providing 'merely more than de minimis ' progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to 'sitting idly ... awaiting the time when they were old enough to 'drop out.' ... The IDEA demands more. [3] |
” |
Gorsuch was questioned about his opinion in Luke P. by U.S. Sen. Dick Durbin (D-Ill.) That exchange is presented here:[8]
Advising the Bush administration[edit]
Committee ranking member Dianne Feinstein (D-Calif.) returned to a line of questioning she raised during the second day of Judge Gorsuch's hearings. The questions related to some documents the senator presented to Judge Gorusch the day before, and which she asked him to review, related to his role in advising the George W. Bush administration during Gorsuch's time at the U.S. Department of Justice. That exchange is presented here. Please note: the relevant section ends at 5:18 into the video.[9]
Originalism[edit]
Several senators asked Gorsuch to explain his views on the legal philosophy of originalism. In response to a question about the equal protection clause of the 14th Amendment, Gorsuch presented his views on originalism:[9]
| “ |
First of all, a good judge starts with precedent and doesn't reinvent the wheel. So, to the extent that there are decisions on those topics, and there are, a good judge respects precedent. That's the first point. The second point I'd make is it would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it, what a good judge always strives to do, and I think we all do, is try to understand what the words on the page mean, not import words that come from us but apply what you, what the people's representatives, the lawmakers have done. [3] |
” |
Video of day three[edit]
A video of the third day of Judge Gorsuch's nomination is below (via Time Magazine's YouTube feed):
Day Four (3/23/17)[edit]
Note: This page was last updated on March 23, 2017. It was written in real-time as events unfolded.
Introduction[edit]
Today marked the final day of confirmation hearings on Judge Neil Gorsuch's nomination to be an associate justice of the U.S. Supreme Court. Today, the committee heard testimony from a number of outside witnesses speaking both in support of, and in opposition to, Judge Gorsuch's confirmation. As the proceedings transpired, U.S. Senate Democratic leader Chuck Schumer (D-N.Y.) signaled his members' intention to filibuster the nomination.
Witnesses' testimony[edit]
The following witnesses entered testimony into the record regarding the nomination. Testimony is provided by the Senate Judiciary Committee.
Note: Click on a column heading to sort the data.
| Outside witness testimony - Nomination of Judge Neil Gorsuch to the U.S. Supreme Court | ||||
|---|---|---|---|---|
| Individual | Organization | Testimony requested by | Link to testimony | |
| Nancy Scott Degan and Shannon Edwards | American Bar Association Standing Committee on the Federal Judiciary |
Senate Judiciary Committee | Witness testimony | |
| Deanell Reece Tacha | Tenth Circuit Court of Appeals (retired) Pepperdine Law School, Malibu, Calif. |
Committee Republicans | Witness testimony | |
| Robert Henry | Tenth Circuit Court of Appeals (retired) Oklahoma City University, Oklahoma City, Okla. |
Committee Republicans | Witness testimony | |
| John Kane | United States District Court for the District of Colorado | Committee Republicans | Witness testimony | |
| Leah Bressack | Former law clerk, Hon. Neil Gorsuch |
Committee Republicans | Witness testimony | |
| Elisa Massimino | Human Rights First | Committee Democrats | Witness testimony | |
| Jameel Jaffer | Knight First Amendment Institute | Committee Democrats | Witness testimony | |
| Jeff Perkins | Berthoud, Colo. | Committee Democrats | Witness testimony | |
| Guerino Calemine | Communications Workers of America | Committee Democrats | Witness testimony | |
| Jeff Lamken | Molo Lamken | Committee Republicans | Witness testimony | |
| Lawrence Solum | Georgetown University Law Center | Committee Republicans | Witness testimony | |
| Jonathan Turley | George Washington University School of Law | Committee Republicans | Witness testimony | |
| Karen Harned | National Federation of Independent Business | Committee Republicans | Witness testimony | |
| Heather McGhee | Demos | Committee Democrats | Witness testimony | |
| Fatima Goss Graves | National Women's Law Center | Committee Democrats | Witness testimony | |
| Pat Gallagher | Sierra Club | Committee Democrats | Witness testimony | |
| Eve Hill | Brown Goldstein Levy | Committee Democrats | Witness testimony | |
| Peter Kirsanow | U.N. Commission on Human Rights | Committee Republicans | Witness testimony | |
| Alice Fisher | Latham & Watkins | Committee Republicans | Witness testimony | |
| Hannah Smith | Becket | Committee Republicans | Witness testimony | |
| Tim Meyer | Former law clerk, Hon. Neil Gorsuch |
Committee Republicans | Witness testimony | |
| Jamil Jaffer | Former law clerk, Hon. Neil Gorsuch |
Committee Republicans | Witness testimony | |
| Kristen Clarke | Lawyers' Cmte. for Civil Rights Under Law | Committee Democrats | Witness testimony | |
| Sarah Warbelow | Human Rights Campaign | Committee Democrats | Witness testimony | |
| Amy Hagstrom Miller | Whole Women's Health | Committee Democrats | Witness testimony | |
| William Marshall | University of North Carolina | Committee Democrats | Witness testimony | |
| Sandy Phillips | Boerne, Texas | Committee Democrats | Witness testimony | |
| Source: Senate Judiciary Committee, "Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States (Day 4)," March 23, 2017 | ||||
An anticipated filibuster[edit]
U.S Sen. Chuck Schumer (D-N.Y.) announced the intention of his Democratic colleagues to filibuster Judge Gorsuch's nomination on the Senate floor. According to a March 23, 2017, report from The Washington Post,[10]
| “ |
Senate Minority Leader Charles E. Schumer (D-N.Y.) said he will vote no on President Trump’s nominee, and asked other Democrats to join him in blocking an up-or-down vote on Gorsuch. Under Senate rules, it requires 60 votes to overcome such an obstacle. Republicans eager to confirm Gorsuch before their Easter recess begins April 7 have only a 52-senator majority. They have said Gorsuch will be confirmed, even if it means removing the filibuster option and allowing Supreme Court nominees to be confirmed to their lifetime appointments with a simple majority vote. Schumer’s decision was not unexpected, but increased the tension over the battle to fill the Supreme Court seat left vacant since Justice Antonin Scalia died unexpectedly in February 2016. 'If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees, and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee,' he said. [3] |
” |
Next steps[edit]
With the hearings completed, Gorsuch's nomination now proceeds to a committee vote on whether to report the nomination to the full Senate for final confirmation. Senator Grassley announced the committee would vote to report the nomination to the full Senate on Monday, March 27, however Section I, Rule 3 of the committee's rules for the 115th United States Congress states, "at the request of any member, or by action of the Chairman, a bill, matter, or nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later." It is expected that this delay would be requested by Democratic members on the committee.
Video of day four[edit]
A video of the fourth and final day of Judge Gorsuch's nomination is below (via The New York Times YouTube feed):
See also[edit]
- Neil Gorsuch confirmation hearings: Day 1
- Neil Gorsuch confirmation hearings: Day 2
- Neil Gorsuch confirmation hearings: Day 3
- Neil Gorsuch confirmation hearings: Day 4
- Supreme Court vacancy, 2017: An overview
- Senate Judiciary Committee
- Neil Gorsuch
- U.S. senators on Neil Gorsuch's nomination
- Antonin Scalia
- Supreme Court of the United States
- History of the Supreme Court
- Supreme Court cases, October term 2016-2017
- What happens to this term's major SCOTUS cases in a 4-4 split?
External links[edit]
Footnotes[edit]
- ↑ YouTube, "Live Stream: Judge Neil Gorsuch confirmation hearing for Supreme Court 3/21/17," March 21, 2017
- ↑ SCOTUSBlog, "Live blog of confirmation hearing," March 21, 2017
- ↑ 3.0 3.1 3.2 3.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ YouTube, "Watch live: Day 3 of Senate Confirmation Hearing for Judge Neil Gorsuch," March 22, 2017
- ↑ SCOTUSBlog, "Live blog of confirmation hearing," March 22, 2017
- ↑ Merriam-Webster, "de minimis," accessed March 23, 2017
- ↑ Supreme Court of the United States, Endrew F. v. Douglas County School District RE-1, March 22, 2017
- ↑ YouTube, "Durbin: Gorsuch Lowered The Bar For Rights Of Students With Disabilities," March 22, 2017
- ↑ 9.0 9.1 YouTube, "Feinstein Questions Gorsuch, Second Round," March 22, 2017
- ↑ The Washington Post, "Schumer: Democrats will filibuster Gorsuch's nomination," March 23, 2017
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