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6 Attack Lines Neil Gorsuch Could Face at His Supreme Court Hearings

Mar 20, 2017

Senate Democrats will get their chance to publicly question Neil Gorsuch this week when he faces the Judiciary Committee for his confirmation hearing.

Gorsuch has been privately meeting with senators for more than a month now, in some cases even distancing himself from Trump behind the scenes to curry favor with wary Democrats.

Democrats will now ask Gorsuch more about Trump's rhetoric and policies, as well as dig into his own record— this time in full view of the press and the public.

Here are six Democratic attack lines to watch.

1. Split Gorsuch from Trump on substance

Democrats will likely try to put daylight between Gorsuch and Trump on policy. One issue that's almost sure to come up is Trump's revised travel ban, after judges in both Hawaii and Maryland rejected it last week. Many Democrats on the committee have slammed the ban, including Illinois Sen. Dick Durbin, who called it "unconstitutional and un-American." In his opening statement Monday Durbin said to Gorsuch, "You're going to have your hands full with this president. He's going to keep you busy." The committee Democrats will ask Gorsuch about the travel ban and other recent executive actions.

2. Split him from Trump on style

Democratic Sen. Richard Blumenthal of Connecticut already got Gorsuch to criticize Trump in a private meeting. Blumenthal told the press about the incident, in which Gorsuch said Trump's attacks on a judge were"demoralizing" and "disheartening." Blumenthal and other Democrats could try to do that again in a more public form, by asking Gorsuch whether he agrees with some of Trump's most inflammatory statements about judges, the press, women, or other people and groups. "It is not enough to say in private that the President’s attacks on the judiciary are 'disheartening,'" Vermont Sen. Patrick Leahy said in his opening statement Monday.

3. Challenge his views on the administrative state

Gorsuch is skeptical of a wonky decision on administrative law from the 1980s that will put him at odds with Democrats on the committee. The so-called Chevron doctrine says that when Congress passes an ambiguous law about a federal agency, that agency gets the first stab at interpreting that law, and the courts defer to the agency so long as its reading is "reasonable." Gorsuch says this takes too much power away from the courts. With the Trump Administration pushing for deconstruction of the administrative state, Democrats are sure to probe Gorsuch on his view of Chevron. Minnesota Sen. Amy Klobuchar said during her opening statement that overturning Chevron would have "titanic" effects on society and create "widespread uncertainty," and she told Gorsuch that she wants to know what he would replace it with.

4. Paint him as pro-corporations, anti-worker

For weeks, Senate Democrats have raised concerns that Gorsuch's judicial record puts him on the side of corporations over individuals. Wednesday, top Senate Democrat Chuck Schumer (who is not on the judiciary committee) held a press conference with Blumenthal (who is), highlighting real people who have been hurt by Gorsuch's decisions. One of the people they brought up was Alphonse Maddin, who was fired from his job at TransAm Trucking in 2009 for abandoning his trailer in sub-zero temperatures when he feared for his safety. Maddin eventually won his lawsuit against TransAm, but Gorsuch dissented in the 10th Circuit, noting that while the law bars employers from firing a worker for "refusing to operate a vehicle," Maddin in fact drove away. Multiple Democrats, including top committee Democrat California Sen. Dianne Feinstein, cited Maddin's case specifically in their opening statements. Durbin said Monday that the freezing night Maddin spent in his truck was "not as cold as your dissent, Judge Gorsuch."

5. Pin him down on an abortion stance

Gorsuch has never ruled on an abortion case. But Democrats may point to other decisions he's handed down and Trump's past statements to try to establish whether he would try to overturn Roe v. Wade. In two recent hot-button cases that made their way to the Supreme Court, Gorsuch upheld religious liberty in legal battles over the Affordable Care Act. In both Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell, Gorsuch sided with the claimants seeking religious exemptions for paying for contraception as required under the ACA. He is also against euthanasia and assisted suicide, writing in a 2006 book on the topic, “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” People on both sides of the abortion question see this language as similar to what critics of abortion say.

During his campaign, Trump also promised that he would only appoint pro-life justices to the Supreme Court. In her statement released the night Trump announced Gorsuch as the nominee, California Sen. Dianne Feinstein, the top ranking Democrat on the judiciary committee, said, "I am deeply concerned that throughout his campaign the president promised to use litmus tests when choosing his nominee. Last October, when asked about the Supreme Court overturning Roe v. Wade, then-candidate Trump said 'That will happen automatically, in my opinion, because I am putting pro-life justices on the court.' Then tonight, President Trump declared, ‘I am a man of my word.’ That’s exactly what I’m afraid of. Judge Gorsuch voted twice to deny contraceptive coverage to women, elevating a corporation’s religious beliefs over women’s health care."

6. Probe his history with the George W. Bush Administration and terror policies

A recent spate of President George W. Bush-era Justice Department and White House documents involving Gorsuch and released by the Trump Administration ahead of the hearings include email correspondence from Gorsuch about Guantanamo Bay and the legality of Bush terror policies. (Gorsuch worked in the Justice Department for just about a year, from June 2005 to August 2006, the New York Times reports.) In November 2005, for example, Gorsuch visited Guantanamo Bay and wrote to the prison operation commander saying, "You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.” Watch for the Democrats to ask about these documents and other national security issues.

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