Gorsuch Faces Questions Over Abortion in Senate Hearing (Audio)

issue rulings in favor of powerful institutions. Today, the Senators began their questioning of gorsts illuming question was whether gorstch would be independent, which he said time and time again he would, even if it meant opposing President Donald Trump. I will apply the law faithfully and fearlessly and without regard to persons. Time and again. Gorsich also refused to comment on pending cases like Trump's Muslim ban, or even

on well established Supreme Court precedent. I'm not gonna say anything here that would give anybody any idea hid rule in any case like that that could come before the Supreme Court or my court of the Tenth Circuit. Our guests are Elizabeth Wider, President of the Constitution Accountability Center, and Carry Severno, Chief council at the Judicial Crisis Network. Elizabeth, what stood out to you during this morning's hearings. Well, I thought one thing that was really interesting happened just

before the break. There was a question to Judge Gorseuch about um these repeated comments made by Donald Trump on the campaign trail and then after um he became president that he would have as explicit litmus test the willingness for his nominee to automatically overrule ro versus Wade. And the question was put to Judge Gorsch and he said that he would have walked out the door if the question had been asked of him. The question was not

asked of him. Now that's really interesting because the question then is, well, Donald Trump said over and over that he was going to use this litmus test being willing to overturn Roe versus Wade. Does that mean he um, you know, decided it wasn't going to be his litmus test and private, even though a lot of people voted for Trump because of this, or did he pick me Gorstch knowing that without asking him the question, his record showed that he would be someone who would overturn Roe

versus Wade. So I think a lot of the people who are watching, frankly on either side either because they want row overturned, or because they desperately want to keep the constitutional right to abortion that women have enjoyed and which enables them to be full economic participants and full equal citizens in this country. A lot of people, I think are looking very closely at that question to just

see how do we square these two statements. Carrie. We know that Judge gorse which was chosen from a list given by a federal the Federalist Society, would anyone on that list be on that list if they weren't conservative

and against Roe v. Wade? Well, the list was chosen with an eye to finding judges who have a judicial philosophy in the line of justice s glean in his mold to someone who's going to have an originalist approach to the Constitution, looking at the text, looking at the original understanding of that text, way that the Constitution or all of its amendments the time of their passage, Um debt someone who is going to be a textualist when

it comes to statutory interpretation. So um, I think all of the list that bards thus far, and so that's what Judge Gorsech stands for as well. And I think another thing that that has been repeatedly mentioned as someone who who has the courage of their convictions. That means even when they think it will be popular use Um. And we've seen many of those cases that Gorsuch has had to try come up today, even when there may be sympathetic litigants on the side that you don't think

legally has the winning argument. Um, that someone who's going to stand up for those principles and still come up with the correct legal result even if they're whether there's political pressure, media pressure, or simply just going wow, this law is a bad law. But as Gorsuch has said, you know, you're not always gonna like the laws as they stand. Your job as a judge is to apply

the law. Elizabeth Um. It's been said that unlike Justice Scalia his right he in the beginning, he was very much compare to Justice Scalia when he was first introduced, especially by President Trump, but that he varies from originalism in his writings. Well, he certainly claims to be Um, you know, and and his supporters have put forth the idea that he is an originalist as a reason to

support him, that he's a textualist and originalist Um. And a lot of people find that concerning because they look at what Justice Scalia did with his so called originalism and finding against protections for women, people of color, LGBTQ

Americans and are concerned by that. I will say that my organization, Constitutional Accountability Center UM, we consider ourselves to be uh focused on the text and history of the Constitution and find that it if you'd actually do the scholarship and do the work, it points to more often

than not progressive results. So we actually did a report on Judge gore such as record looking at it and put out a report which you can find on our website at the U S Constitution dot org that suggest that, uh, well, at the very least, we have concerns that Judge Gorsuch might be more of a selective originalist where he focuses

on the text and history of certain provisions. He talked this morning about the Fourth Amendment protection against search and seizure, and I certainly agree with him when he talked about how that is protected and was protected in a case

from the Supreme Court Jones versus United States. But then when we look at his record on, for example, the Fourteenth Amendment, which was passed after the Civil War and wrote into the Constitution crucial protections for equal equality under the law for all persons, due process of law for all persons, both citizen and non citizen. And we don't see that same um evoking of the drafters of the fourteenth Amendment as we see when he books to the

folks who drafted the Constitution in the eighteenth century. And so it's were to have concerns about that. And I will note that he felt free. Judge cor Such did this morning to answer a question from Senator Hatch about indeed this case. I just talked about Jones and the Fourth Amendment, talking about how the Fourth Amendment, the meaning of it in uh was applied to modern day circumstances

were dream at the Neil Gorcich nomination hearings. He's nominated to fill the seat at the Late Justice and in scale, and he's been compared to Scalle at time and again during the hearings. Gorsich has steadfastly refused to express his opinions about any case decided by the Supreme Court or upcoming. He might have been surprised to hear an interview for the show Uncommon Knowledge in Justice. Scali has said then that since the Supreme Court is essentially rewriting the constitution

term by term. The old criteria for appointing justices no longer applies, and senators should be allowed to find out what kind of a new constitution will this nominee right? You know, Judge so and so, do you think there's a right to whatever his abortion whatever you hate, hate or love, you don't. Well, I think it's there, and my constituents think it's there, and I'm not going to put you on the Supreme That's what's going on, and

it ought to go on. As much as I hate that process, I prefer to the alternative, which is just letting the Supreme Court, without any political control, we write the constitution term by term. We've been talking to Elizabeth Wider, president of the Constitutional Accountability Center, and Carry Severino, chief council at the Judicial Crisis Network. Carry. None of the justices in the past, I don't know how many years have have actually expressed what their opinions are on things.

And Judge Gorcis followed that today, were you surprised to hear what Justice Scale's opinion on that was? Oh? No, I've I've I've heard that said before, and I think that makes no sense. What he's pointing out is if you don't take it as he does, an originalist approach, as Judge Gorcish does, where or in a textualist approach, where you really do take the law and the Constitution seriously.

If you are simply frankly, as the Constitution Accountability Center does in its report, reading in your own what your wishes and dreams into what you think like the fourteen to them that, for example, says, then yes, we need to know what those are, because if you're going to read them into the Constitution as a judge um they

could didn't send it ought to find out what those are. However, if you're going to actually look at what the text says, what the understanding was not not what you wanted to be in two thousand seventeen, whether you wish the fourteen to event included a right to abortion or you know, um marriage or a m assistant suicide, all these different things they have been listed in the in the Constitution Economy,

some of these um briefs. But you know, if you if you actually believe, let's look at what it said they meant when they passed Sup. Fourteen to them that that's what originalism is, and I think that's the kind of thing that insulates judges from the political um back and forth. Here. We shouldn't have to have judges that are going to vote according to what they think a good political outcome is or what they think the sense of the American culture is. They're not They're not posters either.

Their their lawyers and their judges. They should be applying the law as it stands and not trying to rewrite it. Elizabeth, do we really learn anything at these hearings anymore? Because the judge the judges will not answer questions about the content of their rulings or the content of rulings that even Roe v. Wade, you know, which is established in the law. For so long do we learn anything? Well?

I think that the nominees should answer some of those questions when it comes to cases that um our precedent and have been decided. And Judge cor Such actually did that with respect to the Fourth Amendment and the Jones case from twelve. So I would like to see him do that in his answers to questions about the fourteenth

Amendment and same sex marriage and Oberga Fell. I'd like to see him do that about the protection for voting in the fifteenth Amendment, which guarantees the right to vote free from racial discrimination, and the Shelby County case that was decided by the Roberts Court in which they gutted UM, one of the central protections of the Voting Rights Act.

I'd also like to see that with respect to his view of the constitutional provisions in the First Amendment of free speech and how that relates to citizens United So since he's been willing to do it for one case and one constitutional provision, I'd like to see it for other decided cases and other constitutional provisions that are incredibly important.

And that's really all we're trying to do is really find out how this person views the Constitution, how he will be faithful to the Constitution and the law when he gets on the bench, and not be beholden to any particular political agenda or be beholden to the president who put his name forward. So there has been a

lot of questioning this morning about his independency. Certainly has said some of the right things, but you know, there are also questions about whether he was willing to stand up to assertions of executive power when he worked in the George W. Bush administration. So there are a lot of questions that are out there. And you know, honestly, people from all sides of the ideological spectrum have agreed

on certain things. Um, we at C a C often make common cause with our friends on the conservative and libertarian side of the spectrum. So I think Carrie's criticisms are a little bit unfair. And some of the things she talked about we don't actually even talk about in our brief, So I don't think she's read it. But let's let's let's let's carry have a chance to respond to that. Carrie. Sure, I think he is following the

same standard that Justice Ginsburg laid out. She refused to answer at least seventy different questions on topics that were likely to come before the court. All of the Supreme Court numbies that have followed her have tried the same line. I mean, look, the same people who are asking for give me more information about how you would rule on these cases would be filing accusal briefs, and rightly so. If he did go into detail about how he thought

this case. Recall when Justice Schole had give a speech um talking about his opinion on it. It was the pledge of allegiance, and then later had to recuse himself because, yeah, he is a judge. You have to be very careful not to judge a case. So I think what he's doing is not only appropriate but acquired, and it certainly fits in the center what every UH justice has done so far. UM. I think I do agree that with Elizabeth that his statements and judicial independence have been excellent.

He's been very clear no one is above the law, that includes the President of the United States, and I think his record shows exceptional, UM willingness to hold the executive accountable. So I think that's something that should really give a lot of people if they're concerned. We'll have to leave it there. I want to thank both of you for being on Bloomberg Law. That's Carrie Severino, chief council at the Judicial Crisis Network and Elizabeth Wider, President

of the Constitutional Accountability Center. And coming up, we're going to talk about a Supreme Court opinion that actually came down today and it was six to two. It is about the curbing the president's power to appoint someone to fill a top government post.