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Gorsuch Hearings Day 2: Roe, Independence, and a SCOTUS Bladder

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By Casey C. Sullivan, Esq. on March 21, 2017 3:28 PM

Things picked up for Neil Gorsuch today. The second day of the Senate's hearings on Gorsuch's Supreme Court nomination saw the judge tackling, and sometimes evading, weighty issues. Judicial independence was in play, as were Roe v. Wade and other controversial precedents. There was even an untimely reference to the passing of Justice Samuel Alito.

Here are the highlights so far.

Gorsuch Pledges Independence

The Democrats made it clear yesterday that they wanted Judge Gorsuch to prove his independence from the man that nominated him. The Republicans made that easy for him today. At the beginning of today's hearings, Senator Grassley asked Gorsuch whether he would have "any trouble ruling against the president who appointed you."

"That's a softball, Mr. Chairman," Gorsuch responded. He would have no problem ruling against the administration, he said, and referenced the "fierce, rugged independence" of Justice Byron White, for whom he once clerked. When Senator Leahy pressed Gorsuch on the same topic later, the judge explained that "No man is above the law."

Gorsuch also rejected the idea that he had been subject to a presidential "litmus test." When Trump was running for office, for example, he claimed that he would appoint justices who would overturn Roe v. Wade, and that such a change "will happen automatically, in my opinion".

"I have offered no promises on how I'd rule to anyone on any case," Gorsuch said. He had been asked to commit to overturning Roe, he said, "I would have walked out the door."

Dodge Like a Butterfly

Speaking of Roe, Gorsuch repeatedly (and predictably) declined to say how he would treat abortion issues in the future, or any prospective cases. On Roe, he said that the case "is the precedent of the United States Supreme Court" and that, as such, "all of the other factors that go into analyzing precedent have to be considered."

Asked about other controversial rulings, such as Bush v. Gore and Second Amendment cases, Gorsuch declined to take a firm position. "I know some people in this room have some opinions on that," he explained.

So far, Gorsuch has proven quite adept at avoiding taking controversial positions or pledging himself to particular approaches. He has certainly learned the lesson of Judge Robert Bork, whose inadvisably honest responses to Senate questions cost him the nomination. But Gorsuch's sometimes evasive answers might be used by some Senate Democrats to justify a vote against him later.

Gorsuch Addresses Two Issues Head On

Gorsuch wasn't all dodge and parry, however. He addressed two controversial stories head on. The first involved a dissent he issued in an employment dispute involving a snow storm, a trucker, and abandoned cargo. The trucker, Alphonse Maddin, had been trapped in freezing temperatures when he abandoned his cargo in order to move to safety. In his dissent, Gorsuch argued that Maddin's employers were justified in firing him.

"This is one of those that you take home at night," the judge explained. Had the trucker simply refused to operate the vehicle for his own safety, he would have been protected, he explained. But "he chose to operate," and the law thus allowed him to be fired. Though he sympathized with the driver, "My job isn't to write the law," he explained. "It is to apply the law."

Gorsuch also addressed accusations of gender bias. Former students of the judge came forward recently, saying that Gorsuch had implied that women manipulate companies in order to obtain maternity benefits, when they had no plans of returning once they had children.

"He interrupted our class discussion to ask students how many of us knew women who used their companies for maternity benefits, who used their companies to -- in order to have a baby and then leave right away," a student recounts.

When few students responded, Gorsuch persisted. "He said, 'Come on, guys. All of your hands should be up. Many women do this.'"

That's not how he remembers things, Gorsuch said today. The students' claims misrepresent the lesson, he said, explaining that asking prospective employees about their pregnancy plans would be "inappropriate" and that he was "shocked" when some female students said it happened to them.

Finally, the Fun Stuff

There were several moments of levity throughout the hearings as well. At one point, Senator Graham referred to the death of Justice Alito, apparently mistaking him for the late Justice Scalia.

Alito is, of course, very much alive.

Later in the hearing, Senator Sasse asked, on behalf of his wife, how Gorsuch could go so long without using the bathroom. "The SCOTUS bladder is something the country stands in awe of," he joked. That was seven hours in, and Gorsuch had yet to take a bathroom break.

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