Home » Advice & Consent 28: Gorsuch before the Judiciary Committee

Advice & Consent 28: Gorsuch before the Judiciary Committee

The Senate Judiciary Committee grilled Judge Gorsuch for nearly 10 hours today. What was the biggest fish he ever caught? Do he and his family ski? Oh and while we have him under oath for a lifetime appointment to the highest court in the land, what does he think of Chevron? The ragtag gang of the usual suspects tackle the big questions from the hearings!

Direct download: Advice & Consent #28: Gorsuch before the Judiciary Committee (mp3)

Gorsuch before the Judiciary Committee LENA GIVES A RUNDOWN

Day 1: As anticipated, all introductions.

  • Grassley opens
  • Gorsuch welcomes himself and his family (awkward hug w/wife), introduces clerks, assistant, others
  • Grassley Opening:
    • lays ground rules: Day 1 is opening statements day, Day 2 is round I questions and Senators get 30 min each, Day 3 is round II questions, maybe some witnesses, Day 4 is outside witness day; and as we know.
    • Vote 4/3
    • Opens w/Scalia quote (gov’t is one where we have a rule of law, not of men)
    • Tries this magic trick where he talks about coequal branches of gov’t, importance of needing a check on the executive and preservation of constitutional order; mentions tyrannical kings and the separation of powers
    • Ends w/a Scalia Quote
  • Feinstein Opening:
    • First to invoke mistreatment of Chief Judge Garland
    • Mentioned process: litmus test issues
    • Laid groundwork for threads talking about corporate power (TransAm), Chevron, campaign finance, Roe, originalism
  • Bounced back and forth b/t R and D Committee members
    • R themes: Gorsuch won’t answer Qs; Gorsuch is qualified
      • Biggest theme: Ds shouldn’t make this political
    • D themes: Garland shadow; judicial independence; litmus tests; dark money; Roe; Chevron

Day 2: Round I questions, 30 minutes/Senator

  • Grassley: more Scalia, trying to inoculate Gorsuch vs judicial independence line of inquiry; myth of unanimous decisions;
  • Feinstein: starts with Roe b/c picks up on precedent line Grassley ended on; then went into Gorsuch’s time at DOJ and involvement in torture; Gorsuch: avoided, said d/n know the emails she was talking about
  • Hatch: hate Chevron so loves Gorsuch; mentioned bipart support
  • Leahy: starts with Garland and asks if he was treated fairly. Gorsuch begins his frequent refrain that he can’t comment on politics; goes into money in politics; time at DOJ
  • Graham: pats himself on back mostly
  • Durbin: mentioned complicity, Gorsuch’s mentor Finnis
  • Cornyn: talked a lot about law school duration; civic engagement; originalism
  • Whitehouse: money in politics, dark money; anschultz
  • Lee: one of the lawyers “in teh well” in front of Gorsuch
  • Klobuchar: kept talking about not being in teh comfort of a coccoon; talks about cameras in the courtroom; disclosures; independence;
  • Cruz: romance and basketball
  • Franken: Mr. Maddin case; Garland’s feelings
  • Sasse: mutton busting
  • Coons: Complicity and rel liberty
  • Flake: jokes and trout
  • Blumenthal: Trump and judicial independence
  • Crapo: dormant commerce clause; Chevron
  • Hirono: Korematsu
  • Tillis: ?
  • newSenatorKennedy: ?

Lena’s Take Aways:

  1. Rs are chastising Ds for making process “political”
  2. Bar is low: Graham expected Judge Judy
  3. Questions and technique of questions matter
  4. So many themes to pick up, was the D message diluted?
  5. Different Versions of Gorsuch – See examples of folksy Gorsuch here


1- Modern Judiciary Committee hearings for SCOTUS noms aren’t worthless, but they’re close. The opacity of the nominees in answering questions is a disservice to our collective ability to assess them.

2 – Gorsuch was very well prepared. Franken and Klobuchar had him closest to being on the ropes, but he reverted to well-rehearsed lines to wriggle out.

3 – The media will be coronating him if they haven’t already started, largely because of #2.

4 – A rare third amendment reference! It’s like a rare baseball card. Also: Griswold! And a weird dodge around support for the holding?

5 – Speaking of sports. Sen. Sasse’s horrible sports analogy needs to be mocked. Dems asking questions on past cases is like asking a ref to call a game for one team before the game. HELL NO. It’s like asking the ref, “how do you define travelling” or “what’s your strike zone.” I am offended as a sports fan and SCOTUS nerd.

6 – I have no proof, but I think everyone turned Ted Cruz off. It’s like Twitter went on slo mo when he was on.

7 – Speaking of constitutions, I have a weak one compared to everyone on screen. I had a live stream on in the background all day, could come and go when I wanted and I feel like I climbed Everest.

8 – Best D: tie (Klobuchar and Franken). Next: Blumenthal and Whitehouse.

9 – Best R: Graham. No competition, unless you like stories about skiing or fishing, which frankly felt like time wasters. I’ll stipulate to the judge’s humanity and interest in things humans do.

10 – “tough case” means controversial case where I took a super “movement” stand, but want to make it seem like I was on the line.


Point zero: The question of whether Gorsuch should be on the Supreme Court is truly important, and it is a shame this is the process we are using. Gorsuch styles himself an originalist. The justice who most adheres to originalism when it doesn’t strongly conflict with his own policy views is Justice Thomas. And he came out with an opinion today that is impeccable from an originalist perspective, but may be the only opinion I’ve seen that would violate the dictum (stated first either by Abe Lincoln or the very interesting Justice Robert Jackson) that the Constitution is not a suicide pact. Thomas argued that the Constitution, which requires all “principal officers” of the United States to be appointed with advice and consent of the Senate, bans the president from designating acting officers for the key positions. Therefore, if the Secretary of Defense dies, there can be NO ONE to act as Secretary of Defense until the Senate confirms a new secretary, which in this era of nukes, other WMD, cyberterrorism, and 9/11 would truly make the Constitution a suicide pact. https://www.supremecourt.gov/opinions/16pdf/14-9496_8njq.pdf Strict originalism is a very dangerous way to interpret the Constitution that conservatives came up with to attack school desegregation and reproductive freedom (no matter how many liberal legal intellectuals like Akhil Amar have taken up the originalist mantle).

1 Progressives have not had a strong chairman or ranking member for a Supreme Court hearing for nearly the entire period in which the Committee has held such hearings. They’ve either been in over their heads, Feinstein, terrible rhetorically, Pat Leahy, willing to abandon progressives when he was most needed, Biden, a pro-segregationist, Eastland. And that takes us back to 1955.

  1. The ONLY way this dynamic of a nominee residing to answer substantive questions will change is if senators use the refusal to answer questions to defeat the nominee. Especially, if it’s senators from the party that controls the White House.
  1. Right now, senators act outraged when a nominee they don’t like won’t answer questions, but turn a blind eye when nominees they do like do the same thing.
  1. On the bright side, just because the job of judging should be apolitical, that doesn’t mean the job of selecting judges should be. Unlike Lena, I don’t think there is anything wrong with litmus tests and surely they are used. It’s ok to nominate only people who will say “i think Roe was rightly/wrongly decided.” It’s the nature of having elected officials in charge of judicial selection that they will use litmus treats. What’s wrong with the system is that the president uses litmus tests and then the rest of the process occurs as if litmus tests weren’t used and would be wrong if they were used.



Tim’s Real time follow up: mutton busting is little kids riding sheep rodeo style… I now plan to ask my Oklahoma native partner if she has ever heard of such things and get my western New York self educated.

We will only do another pod this week if something unexpected happens – which, by definition, we don’t expect

We’ll be back for sure next week with a hearing summary and thoughts on the timeline going forward. McConnell indicates he intends to get this voted on before the April recess.