Senate Panel To Begin Hearings For Supreme Court Nominee Neil Gorsuch

Mar 20, 2017
Originally published on March 20, 2017 11:45 am

Editors' note: Since this story was broadcast, we have updated the online version of the report with material from another former student and former law clerks of Gorsuch, along with more information about Jennifer Sisk's political affiliations. That story is headlined "Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch" and is posted here: http://www.npr.org/2017/03/20/520743555/former-law-student-gorsuch-told-class-women-manipulate-maternal-leave

The Senate Judiciary Committee on Monday opens hearings on Gorsuch's nomination to the Supreme Court. Liberal and conservative groups have been marshaling their forces for and against the nominee.

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STEVE INSKEEP, HOST:

Today, a Senate committee begins hearings on President Trump's nomination of Neil Gorsuch to a seat on the United States Supreme Court. Now, any nominee for the Supreme Court is favored for confirmation. Most in history have received the necessary votes. But this will be a battle. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: In anticipation of this week's hearings, liberal and conservative groups have been marshalling their forces for and against the nominee with TV ads and grassroots efforts. As former Bush administration Solicitor General Paul Clement puts it...

PAUL CLEMENT: Nomination is the phrase that would be technically used but candidacy is really more accurate given kind of what the Supreme Court confirmation process has become these days.

TOTENBERG: In the Gorsuch campaign, the liberals are clearly being outspent by wide margins. Though exact numbers are hard to come by, the conservative Judicial Crisis Network alone has budgeted $10 million for the fight. Ads like this one are running principally in the 10 states carried by Trump where Democratic senators face re-election next year.

(SOUNDBITE OF AD)

UNIDENTIFIED MAN #1: It is the rule of judges to apply, not alter the work of the people's representatives.

UNIDENTIFIED MAN #2: Completely qualified with bipartisan support, Neil Gorsuch is just who we need on the Supreme Court.

TOTENBERG: While at previous confirmation hearings critics have focused on big social issues like affirmative action or abortion, this time the critics' strategy is to portray Judge Gorsuch as someone who's sided with corporations instead of regular folks. Democratic senators are under enormous pressure from their left flank to resist, even though they privately admit the votes aren't there. Still, they're trying. Here, for instance, is Senate Democratic leader Charles Schumer at a press conference last week.

(SOUNDBITE OF PRESS CONFERENCE)

CHARLES SCHUMER: Judge Gorsuch may act like a neutral, calm judge, but when it comes time to rule, far too often he sides with the powerful few over everyday Americans trying to just get a fair shake.

TOTENBERG: That theme is echoed in ads like this one paid for by the liberal Constitutional Responsibility Project.

(SOUNDBITE OF AD)

UNIDENTIFIED WOMAN: Why did he make it harder to hold Wall Street accountable or for women to get birth control? If Gorsuch refuses to say where he stands on critical constitutional issues like your privacy, he doesn't belong on the Supreme Court.

TOTENBERG: The ad forecasts the Democrats' hearing strategy. They'll ask the nominee questions. And if he dodges or refuses to answer, that will be more fodder for their opposition. Knowing that, Republican Senator Orrin Hatch took to the Senate floor last week in prebuttal.

(SOUNDBITE OF ARCHIVED RECORDING)

ORRIN HATCH: There is a plague threatening judicial independence here. This plague takes the form of the minority leader's attempt to extract these sort of inappropriate answers. And Judge Gorsuch is wise to avoid that.

TOTENBERG: As Yale law professor Reva Siegel observes, no senators should ask questions that bind a nominee in terms of his vote on future cases.

REVA SIEGEL: On the other hand, it is totally appropriate and within role for the senators to explore the judicial philosophy of the nominee.

TOTENBERG: In truth, nominees answer as much as they have to. Then-Judge Ruth Bader Ginsburg answered questions about some 30 already decided Supreme Court cases when she was before the Judiciary Committee in 1993. But she had a long paper trail as a scholar, litigator and judge. Others like Obama nominee Sonia Sotomayor and George W. Bush nominee Samuel Alito nearly bored their inquisitors to death with repetitive answers that said as little as possible. A diffusive charm and humor also go a long way, talents that Obama nominee Elena Kagan and Bush nominee John Roberts excelled at. Judge Gorsuch is likely to have that skill as well, unless nerves or something else get the better of him.

One area where he'll have some difficulty dodging is his role in the Bush administration war on terror. As deputy associate attorney general from 2005 to 2006, he played a significant role in some of the controversies involving so-called enhanced interrogation techniques including waterboarding. And he seemed to support an expansive exercise of presidential power, a subject that is especially of interest in this time of Trump. Much of this is spelled out in tens of thousands of pages of Justice Department documents turned over to the Judiciary Committee last week, material that will doubtless provide further fodder for Democrats.

Another subject Gorsuch is bound to be quizzed about arose late last night when the National Employment Lawyers Association and the National Women's Law Center posted documents on their websites raising questions about Gorsuch's attitudes towards women in the workforce, particularly women lawyers. Among the documents was a letter written to the Senate Judiciary Committee from a Colorado prosecutor named Jennifer Sisk who last year graduated from Colorado Law School where Judge Gorsuch was a professor on legal ethics and professionalism. In her second to last class on April 19, 2016, she wrote, Judge Gorsuch used a hypothetical from their prepared material for the class in which a law student applies for jobs at law firms because the student has a large debt to pay off. The student also intends to have a family with her husband.

Normally, Sisk said, Judge Gorsuch would have let the class discussion go on and at the end give them his own opinion. But on this occasion, Gorsuch asked the class to raise their hands if they knew of a female lawyer who had used a company to get maternity benefits and then left after having the baby. When only a few people raised their hands, according to Sisk, Judge Gorsuch said come on guys and strongly suggested that, quote, "many women intentionally manipulate their companies in this way." In an interview with NPR, Sisk said the judge did not ask about men manipulating companies to get paternity leave, nor did he ask whether men or women conceal their military obligations or reserved status. Rather, she said, he insisted even when challenged that it is legal to ask a female applicant whether she plans to have a family.

JENNIFER SISK: I was surprised. I mean, he certainly held views that I didn't completely agree with. But he was always in class, wanted discussion, wanted engagement of different views. So I thought he was a fair teacher. So I was very surprised when he brought up these views with so little room for any other opinions.

TOTENBERG: She said she reported the matter to the dean of students and the law school dean. In her interview with NPR, she said both voiced concern and told her that Judge Gorsuch had been wrong in saying such inquiries were legal. Both deans told her they would take it up with the judge. In an interview, Sisk said she assumed they did but she didn't follow up. Neither of the deans returned NPR's calls. Nina Totenberg, NPR News, Washington.

[EDITORS' NOTE: Since this story was broadcast, we have updated the online version of the report with material from another former student and former law clerks of Gorsuch, along with more information about Jennifer Sisk's political affiliations. That story is headlined "Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch" and is posted here: http://www.npr.org/2017/03/20/520743555/former-law-student-gorsuch-told-class-women-manipulate-maternal-leave.] Transcript provided by NPR, Copyright NPR.