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Neil Gorsuch confirmation hearings: Day 3

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Gorsuch confirmation hearings, day 3: March 22, 2017


Today marked the third day of confirmation hearings on Judge Neil Gorsuch's nomination to be an associate justice of the U.S. Supreme Court. Today, Senate Judiciary Committee members resumed their questioning of the nominee. Each senator was allotted 20 minutes for questioning in what was described as the second round of questioning. A third round of questioning was held in a late afternoon session; senators who wished to question the nominee were limited to 15 minutes. At the end of the third round of questioning, Gorsuch's testimony was complete. A final day of hearings took place on March 23, 2017. Those hearings were reserved for outside witnesses.

HIGHLIGHTS
  • March 22, 2017, was the third day of confirmation hearings for Judge Neil Gorsuch's nomination to the U.S. Supreme Court.
  • Gorsuch was nominated by President Donald Trump (R) to succeed Justice Antonin Scalia on the Supreme Court.
  • Chairman Chuck Grassley gavelled the hearings into session at 9:30 a.m. EST today. The hearings lasted for about ten hours. Each committee member was given 20 minutes to question the nominee, followed by another round of questioning later in the day.
  • It was Gorsuch's final day of testimony before the Senate Judiciary Committee.


    • Read more about day one, day two, and day four of Judge Gorsuch's hearings.

    Themes from senators' questions

    Every senator on the committee was given 20 minutes to question the nominee in a second round of questioning. A third round of questioning was held later in the day. Though a complete hearing transcript was not available from the Senate Judiciary Committee, below are some exchanges of note between the committee members and the judge from publicly available sources. A transcript will be provided on this page once it is available from the committee.[1][2]

    A precedent overturned?

    On March 22, 2017, while Judge Gorsuch's confirmation hearings taking place before the Senate Judiciary Committee, the U.S. Supreme Court issued a unanimous ruling in Endrew F. v. Douglas County School District, vacating and remanding a judgment of a three-judge panel of the United States Court of Appeals for the 10th Circuit, the court on which Gorsuch currently ssits. In the opinion, the Supreme Court held that the Individuals with Disabilities Education Act (IDEA) required schools to offer an individualized education plan (IEP) reasonably calculated to enable a child to progress that is appropriate in light of the child's circumstances. The court declined to create a uniform rule for determining the adequacy of the IEP, but noted that the adequacy of an IEP would depend on the circumstances of the child for whom the IEP was created.

    Though Gorsuch did not sit on the appellate panel whose opinion was overturned by the Supreme Court, several senators, including Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), and Chuck Grassley (R-Iowa) referred to a 2008 case that Gorsuch did author in the same area of law, Thompson R2-J School District v. Luke P. In 1996, prior to Gorsuch being on the court, the Tenth Circuit ruled in Urban v. Jefferson County School District R-1 that, to comply with the IDEA, the educational benefits conferred by a school district to a qualifying student must be more than de minimis. According to Merriam-Webster's online dictionary, de minimis means "lacking significance or importance, so minor as to merit disregard."[3]

    In 2008, in Thompson v. Luke P., Gorsuch appeared to modify this standard, concluding that the educational benefit mandated by the IDEA must merely be more than de minimis. The use of the term merely in the Luke P. case, and used as the standard in Endrew F., is what the U.S. Supreme Court appeared to strike down in their decision on March 22, 2017.

    In an opinion by Chief Justice John G. Roberts, the court said that[4]

    “

    for a child fully integrated in the regular classroom, an IEP typically should ... be 'reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.' ... The goals may differ, but every child should have the chance to meet challenging objectives. Of course this describes a general standard, not a formula. But whatever else can be said about it, this standard is markedly more demanding than the 'merely more than de minimis ' test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot. When all is said and done, a student offered an educational program providing 'merely more than de minimis ' progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to 'sitting idly ... awaiting the time when they were old enough to 'drop out.' ... The IDEA demands more. [5]

    		”

    Gorsuch was questioned about his opinion in Luke P. by U.S. Sen. Dick Durbin (D-Ill.) That exchange is presented here:[6]

    Advising the Bush administration

    Committee ranking member Dianne Feinstein (D-Calif.) returned to a line of questioning she raised during the second day of Judge Gorsuch's hearings. The questions related to some documents the senator presented to Judge Gorsuch the day before, and which she asked him to review, related to his role in advising the George W. Bush administration during Gorsuch's time at the U.S. Department of Justice. That exchange is presented here. Please note: the relevant section ends at 5:18 into the video.[7]

    Originalism

    Several senators asked Gorsuch to explain his views on the legal philosophy of originalism. In response to a question about the equal protection clause of the 14th Amendment, Gorsuch presented his views on originalism:[7]

    “

    First of all, a good judge starts with precedent and doesn't reinvent the wheel. So, to the extent that there are decisions on those topics, and there are, a good judge respects precedent. That's the first point. The second point I'd make is it would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it, what a good judge always strives to do, and I think we all do, is try to understand what the words on the page mean, not import words that come from us but apply what you, what the people's representatives, the lawmakers have done. [5]

    		”

    Video of day three

    A video of the third day of Judge Gorsuch's nomination is below (via Time Magazine's YouTube feed):

    See also

    External links

    Footnotes

    1. ↑ YouTube, "Watch live: Day 3 of Senate Confirmation Hearing for Judge Neil Gorsuch," March 22, 2017
    2. ↑ SCOTUSBlog, "Live blog of confirmation hearing," March 22, 2017
    3. ↑ Merriam-Webster, "de minimis," accessed March 23, 2017
    4. ↑ Supreme Court of the United States, Endrew F. v. Douglas County School District RE-1, March 22, 2017
    5. ↑ 5.0 5.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ YouTube, "Durbin: Gorsuch Lowered The Bar For Rights Of Students With Disabilities," March 22, 2017
    7. ↑ 7.0 7.1 YouTube, "Feinstein Questions Gorsuch, Second Round," March 22, 2017
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