Democrats sharpen attacks on Gorsuch after Supreme Court rebuff

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Senate Democrats repeatedly accused Supreme Court nominee Neil Gorsuch of not being forthcoming with his legal philosophy on Wednesday, and seized on a surprise ruling from the high court that unanimously rejected a legal standard Gorsuch once used to rule against an autistic child.

Despite the aggressive push from Democrats on the second day of questioning, Gorsuch has so far emerged from the consequential hearings largely unscathed.

Still, the Supreme Court’s unanimous decision Wednesday in a case involving special-needs children — where the justices challenged the standard Gorsuch used in a separate decision in 2008 — gave new ammunition to Democrats scrambling to lay out their argument against the nominee ahead of a floor confirmation vote next month.

“The Supreme Court found that disabled students are entitled to substantially greater protections under federal law than Judge Gorsuch previously ruled they were,” Senate Minority Leader Chuck Schumer (D-N.Y.) said Wednesday. “This is part of a continued, troubling pattern of Judge Gorsuch deciding against everyday Americans — even children who require special assistance at school.”

Gorsuch’s 2008 ruling denied an autistic boy placement in a special private school at public expense. During his hearing Wednesday, Gorsuch told senators that he ruled against the child because he was restricted by previous legal precedents.

“I was wrong because I was bound by circuit precedent,” Gorsuch said. “And I’m sorry.”

He later said he was never driven by “any personal animus, not any raw motive” in any of his rulings as the conversation circled back to the 2008 disability case.

Democrats weren’t buying it.

Sen. Amy Klobuchar (D-Minn.) noted that the Supreme Court unanimously rejected Gorsuch’s standard and added: “To me, it seems out of the mainstream.”

Republicans defended Gorsuch, noting that the Supreme Court nominee was just making his legal decision based on previous rulings.

“The fact that you followed precedent faithfully should give comfort to senators on both sides of the aisle that you will continue to do so as a Supreme Court justice,” Sen. Ted Cruz (R-Texas) pointed out.

Gorsuch’s skeptics had more than a few other grievances.

California Sen. Dianne Feinstein, the Judiciary Committee’s top Democrat, quizzed Gorsuch over his belief that the Constitution should be interpreted strictly as when it was written — pressing him repeatedly on what his originalist philosophy means for gay rights and access to abortion.

As he did in his first day of interrogation, Gorsuch insisted that “no one is looking to return to the horse-and-buggy days.” But that wasn’t satisfying Democrats as they made their case against his confirmation.

“You have been very much able to avoid any specificity like no one I have ever seen before,” Feinstein told Gorsuch. “Maybe that’s a virtue, I don’t know. For us on this side, knowing where you stand on major questions of the day is really important to vote ‘aye,’ so that’s why we press, and press, and press.”

More and more, Democrats are raising concerns that Gorsuch is dodging key questions as senators engage in an increasingly contentious battle over whether to confirm him to replace the late Justice Antonin Scalia. Gorsuch is reluctant to weigh in with specifics on how he would rule on a case that might appear before him, but Democrats argue the high court hopeful needs be much more detailed with his answers.

“We’re looking for an insight into your values and your judgment,” Sen. Dick Durbin (D-Ill.) said. “And it’s hard in this kind of hearing to get close to it.”

Like they did one day earlier, Democrats pushed Gorsuch on abortion, gay rights, campaign finance and other contentious policy issues that often wind up before the Supreme Court. On abortion, Gorsuch declared Roe v. Wade as “the law of the land” — a slightly firmer declaration of support for the landmark 1973 case legalizing abortion than he gave on Tuesday, when he only called it a “precedent.”

Gorsuch would need votes from at least eight Democrats in order to break an expected filibuster of his nomination when it heads to the Senate floor early next month. If Democrats try to block Gorsuch, Republicans could invoke the so-called nuclear option to change Senate rules and eliminate the filibuster for Supreme Court nominations.

But back in the committee, Republicans pushed back at the Democratic criticisms of Gorsuch’s performance before the 20 senators on the powerful panel.

“If we’re going to vote against a nominee because they won’t tell us things that we want to hear about issues important to us, then the whole nominating process has become a joke,” Sen. Lindsey Graham (R-S.C.) said. “What has happened over time is that somehow, some way, we’ve gone from Scalia the originalist getting 98 votes, [Justice Ruth Bader] Ginsburg, the bastion of liberalism on the court, well-qualified, getting 96 votes. What’s happened? Did the Constitution change? I don’t think so. I think politics has changed.”

Wednesday marked the third day Gorsuch has appeared before the Judiciary Committee for his marathon confirmation hearings. Questions from senators are expected to wrap up on Wednesday, and outside witnesses will testify on the nomination on Thursday. A committee vote is expected April 3, and Republicans hope to confirm Gorsuch before a two-week recess starts on April 8.

Gorsuch also acknowledged Wednesday for the first time that he knew of no proof that the George W. Bush administration’s aggressive interrogation tactics had produced intelligence successes, despite the fact that he indicated as a Justice Department lawyer in 2005 that there was such evidence.

“My recollection of 12 years ago is that that was the position that the clients were telling us. I was a lawyer. My job was as an advocate. And we were dealing with the detainee litigation. That was my involvement,” Gorsuch said, referring to his tenure as principal associate deputy attorney general.

“So, you had no personal information?” Feinstein asked.

“Oh, no,” Gorsuch replied.

Feinstein did not seem entirely satisfied with that answer.

“It seems to me that people who advise have an obligation to find the truth in these situations,” she said. “Things happened. It’s a closed chapter. But it should never again happen. This is America. And it’s not what we stand for.”