Apr 03 2017
Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today announced her opposition to Judge Neil Gorsuch’s nomination to the Supreme Court:
“In my view, this is not a routine nomination. So I want to begin with just some brief comments about what has made this different for me. The first, of course, is what happened last year, which is unprecedented.
As I noted in our last meeting, throughout our nation’s history, a total of 19 Supreme Court justices have been nominated and confirmed in a presidential election year, and three of these have been nominated and confirmed after the presidential election took place.
So there was simply no reason that the nomination of Judge Garland could not proceed, other than to deny the then-president of the United States, President Barack Obama, the ability to fill the seat. And that’s what has taken place.
Secondly, press reports indicate that $7 million of dark money was spent to defeat Judge Garland’s nomination. This too was unprecedented. However, with the nomination of Judge Gorsuch the spending of dark money has only grown.
Weeks ago, press began reporting that the Koch brothers—through Concerned Veterans for America—and other conservative donors through the Judicial Crisis Network planned to spend at least $10 million on a political campaign to support Judge Gorsuch’s nomination.
Since then, the National Rifle Association has launch a $1 million ad buy, and just last Friday, the Judicial Crisis Network announced another $1 million, targeted to specific senators in Missouri, Montana, Indiana and Colorado.
So this nomination is not the usual nomination. It comes in a different way, and it has proceeded in a way of excessive spending of dark money that in the time I have been on this committee I have never seen before.
So this is deeply troubling. And I don’t believe it’s the way a serious process of evaluating a Supreme Court nominee should be conducted.
I want to be clear though—although my vote will not be based on these factors—I strongly believe that the expenditure of millions of dollars of unknown dollars should not be permitted in the nomination of a Supreme Court justice.
However, we have had four days of full and fair hearings and today we begin our markup.
I want to thank the chairman for his leadership and the very cooperative manner in which the hearings were conducted. So I want you to know Mr. Chairman, your allowing all members to fully ask questions and have the time they needed to examine Judge Gorsuch’s record and hear from outside witnesses is very much appreciated. So thank you.
In reviewing the list of Judge Gorsuch’s decisions on the Tenth Circuit, two stand out as appearing to indicate his view of how a law should be interpreted and whether precedent should be overturned.
And the first, which has been talked about before, but nonetheless very important, is a case called TransAm Trucking.
The driver, Alphonse Maddin, was stranded in sub-zero temperatures for several hours with frozen brakes on the trailer and no heat in his cab. It was so cold his torso was numb and he could not feel his feet.
After waiting hours for assistance, Mr. Maddin was instructed to drive the cab and the trailer together or not at all. When he could no longer stand the cold, he unhitched the trailer and drove to get help. Because of this, he was fired.
The Department of Labor found he was illegally fired for refusing to “operate” the vehicle.
In fact, the administrative law judge, the administrative review board, and the majority of the Tenth Circuit all agreed that he had been illegally fired for refusing to “operate” the vehicle as instructed by his employer.
Judge Gorsuch disagreed.
Instead, he argued in his dissent that the term “operate” should be interpreted by the Oxford dictionary’s definition. That “operate” should include only operating the “cab” of the truck and Maddin’s employer could fire him with impunity.
I find this striking.
First, Judge Gorsuch’s argument ignores the reality that Mr. Maddin was given an impossible choice—risk your own life or the life of others on the road.
Secondly, it ignores the fact that judges are not evaluating cases and interpreting law in a vacuum or a law school classroom, but rather, cases are about real people and real life.
In fact, the majority of his own court on the Tenth noted that Judge Gorsuch’s narrow interpretation of the word “operate” was based on one dictionary, while they had found a different dictionary definition that supported their reading of the statute.
Simply put, which dictionary a judge happens to select should not and cannot determine whether a just outcome is achieved in a case.
The second case that really stood out—and the father testified before us—was Luke P.
Luke Perkins was diagnosed with autism at 22 months. As he got older, the amount of structure and educational services he needed increased.
In response, Luke’s parents and grandparents did all they could. They dug deep into their savings. They sought support from the school district, as provided for under the Individuals with Disabilities Education Act, known as IDEA. But they were denied.
The independent hearing officer, the administrative judge, and the United States district court all determined the school district was wrong to deny funding.
But when the case got to the Tenth Circuit, Judge Gorsuch inserted the word “merely” into the standard. Now up to this point, the Tenth Circuit had held that the educational benefit had to be, quote, “more than de minimis,” end quote. Adding the word “merely” made a narrow interpretation of the law even narrower. As Luke’s father testified to us, and I quote, “Judge Gorsuch felt that an education for my son that was even one small step above insignificant was acceptable,” end quote.
Luckily, the Supreme Court unanimously rejected Judge Gorsuch’s interpretation of the law—actually, during our hearings.
In both cases, Judge Gorsuch unnecessarily went out of his way to apply his own view of what the law should be—even when it would have devastating effects on people’s lives.
Because these cases were troubling, I had hoped Judge Gorsuch would better explain his judicial philosophies and personal views at this hearing.
But that did not happen.
Judge Gorsuch’s views were difficult to discern because he refused to answer many questions—even basic questions that have been answered by previous nominees.
For example, Senator Blumenthal asked the judge if he agreed with the results of Brown v. the Board of Education, one of the most important cases in our history—I think everyone would agree. Rather than agreeing that schools shouldn’t be segregated, Judge Gorsuch instead said it was, quote, “the correct application of precedent,” end quote.
To be clear, when asked if he supported Brown, Judge Gorsuch refused to directly answer.
In contrast, when Justice Kennedy was asked about Brown, he replied, and I quote, “I think Brown v. Board of Education was right when it was decided, and I think it would have been right if it had been decided 80 years before,” end quote.
In another exchange, Senator Franken asked about a wave of recent laws to restrict access to voting. These laws were found to target African Americans with “surgical precision”.
Senator Franken discussed the effect of these laws, but he simply asked if Judge Gorsuch was disturbed by efforts to disenfranchise African-American voters. The question has but one easy answer—and it’s yes.
Yet, instead of agreeing, Judge Gorsuch ducked the question. He responded, and I quote, “If there are allegations of racism in legislation in the voting area, there are a variety of remedies,” end quote.
Even Justice Alito was more candid. When asked about affirmative action, Justice Alito replied: “I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be… Having a diverse student body is a compelling interest.”
Going even further, in 1987 Senator Biden asked Justice Kennedy not what he thought about affirmative action generally, but whether the voluntary affirmative action plans are legally permissible. Judge Kennedy unequivocally responded: “Yes.”
Unfortunately, Judge Gorsuch’s answers were so diluted with ambiguity, one could not see where he stood, even on big and long-settled cases.
When I asked Judge Gorsuch about his work at the Department of Justice involving the Bush administration’s defense of the use of torture—despite providing relevant documents—Judge Gorsuch said only that, quote, his “memory is what it is, and it isn’t great on this,” and that the position he took on torture, quote, “was the position that the clients were telling [him],” end quote, to take.
Not only did he not answer my question, he raised an additional concern.
I strongly believe that when you work for the government, either as a lawyer or a policymaker, it’s important to comment on the legality of the issue you advise or write. To say “I did what they wanted” is not enough, particularly if the legality is contradicted by both law and treaty.
I also believe it’s important to remember the context. At this point, our country was involved in detaining people indefinitely without charge or trial—leaving them with no rights, no meaningful opportunity to challenge their confinement.
The government had also decided the executive could order the use of certain enhanced-interrogation techniques that included waterboarding, stress positions and sleep deprivation, as well as a host of other techniques which would, and did, result in death and serious debilitation of detainees.
It was April 2004 when the public first learned about the prisoner abuse chronicled in the Abu Ghraib photos. Then in June of 2004, information was leaked to the media that the Department of Justice had issued legal opinions that stated enhanced-interrogation techniques were within the law, unless they inflicted the kind of pain associated with organ failure or death.
Judge Gorsuch reached out to the White House political director in November 2004—approximately six months after these revelations—to say how he wanted to “help the cause” and be a “full-time member of the team.”
Then in March 2005, he reached out to the chairman of the Republican National Committee, who vouched for Gorsuch as a “true loyalist” and “a good, strong conservative.”
Judge Gorsuch ultimately joined the Bush administration in June of ‘05.
Through our examination of his documents, we learned that during his tenure at the Department of Justice, he was involved in efforts to strip detainees of their ability to have habeas cases heard by federal courts, defend and protect the Bush administration’s position on torture and issue an expansive signing statement on the Detainee Treatment Act. These statements were used to highlight parts of the law the administration intended not to follow.
Importantly, we learned that Judge Gorsuch advocated for the Bush administration to issue a broad signing statement. He said it could be used to, and I quote, “help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment; this statement clearly, and in a formal way that would be hard to dispute later, puts down a marker to the effect that the view that McCain is best read as essentially codifying existing interrogation techniques.”
Nothing could be farther from the truth.
Judge Gorsuch’s email shows a knowledge of the Bush administration’s position on torture. It also demonstrated he supported efforts to codify existing interrogation policies such as waterboarding and other extreme techniques.
In our written questions, I asked again about his views on enhanced-interrogation techniques. I know something about them. The Intelligence Committee, while I was chairman, has in classified status, over 7,000 pages, with 32,000 footnotes, that document all of this.
I tried to understand his opinions on right and wrong and whether he was at all disturbed by what our government was doing.
Unfortunately, once again, the answers I got were non-responsive.
For example, I asked Judge Gorsuch what he meant when he suggested that a signing statement could “inoculate” the administration if they were later criticized for not making, quote, “sufficient changes to the interrogation policy” based on the McCain amendment.
Judge Gorsuch responded once again that he was, quote, “a lawyer advising a client,” end quote, and that his client—the government—was arguing that the McCain amendment simply codified existing policies. Judge Gorsuch’s defense is that he was only doing what his client wanted him to do.
Many of my colleagues on the other side of the aisle have praised Judge Gorsuch’s qualifications, and there’s no question he’s well-educated and well-credentialed.
But we’re not just evaluating a resume. If we were, every Supreme Court nominee would pass unanimously, 100-0. Rather, all of us evaluate not only their education and experience, but also their judicial philosophy, temperament and views on important legal issues.
We do this because if confirmed, a nominee’s decisions will affect the lives of all Americans for generations. And as I’ve said, our job is to assess whether the nominee will protect the legal and constitutional rights of all Americans, and whether the nominee recognizes the humanity and justice required when evaluating the cases before him.
Unfortunately, based on Judge Gorsuch’s record at the Department of Justice, his tenure on the bench, his appearance before the Senate and his written questions for the record, I cannot support this nomination.”