Judge Neil Gorsuch's track record in cases pitting corporate interests against individuals' were a primary focus when members of the Senate Judiciary Committee delivered opening remarks Monday for what may be up to four days of hearings regarding his nomination to the U.S. Supreme Court.
That theme is likely to continue Tuesday when Gorsuch will be subjected to several rounds of questions from committee members.
Gorsuch received repeated praise from Republicans on the panel, who noted he shared the "originalist" judicial philosophy of the late Antonin Scalia, which they said obliges judges to adhere to a strict reading of the Constitution and the laws before them in a particular case and to refrain from twisting their rulings to fit their desired policy outcomes.
Democrats have said that approach is simply a convenient rationale for ruling against protections for individuals in the workplace and for the environment and in favor of corporate interests. Gorsuch's opinions during his past 11 years a member of the U.S. Court of Appeals in Denver bear that out, they said.
Sen. Dianne Feinstein, the ranking Democrat on the committee dispensed with any niceties as the hearing kicked off. She pointed to Gorsuch's dissent in Transam Trucking versus Department of Labor in which he criticized his colleagues on Denver's 10th Circuit for finding against a company that had fired a truck driver whose vehicle had broken down in the cold for several hours after his trailer's brakes froze. Without heat and facing treacherous roads he disobeyed his company's instructions and unhitched his cab and drove to get help.
What has been dubbed the "freezing trucker case" has become a key talking point for Gorsuch opponents and Democrats teed it up and drove it repeatedly Monday.
Feinstein explained why. "It is the Supreme Court that will have the ultimate say on whether employers will be held accountable for discriminating against workers or failing to protect workers when they're harmed or killed on the job," she said.
Beyond the trucker case, the Supreme Court is the final word in cases determining "whether billionaires and large corporations will be able to spend unlimited sums of money to buy elections, and whether states and localities will be able to pass laws and make it harder for poor people, people of color, seniors and younger people to vote. It is the Supreme Court that will have final word on whether corporations will be able to pollute our air and water with impunity, or whether the NRA and other extreme organizations will be able to block common-sense gun regulations, including those that keep military-style assault weapons off our streets."
Sen. Patrick Leahy continued he depiction of the Scalia/Gorsuch judicial philosophy as one that favors big business over the little guy. "It has been 25 years since an originalist has been nominated to the Supreme Court," he said. "Given what we've seen from Justice Scalia, Justice Thomas and Judge Gorsuch's records, I worry that it goes beyond being a philosophy and it becomes an agenda."
The Vermont Democrat said conservative groups, namely the Heritage Foundation and the Federalist Society, have vetted Judge Gorsuch have a "clear agenda, one that's anti-choice, anti-environment, pro-corporate. And these groups are obviously confident that Judge Gorsuch shares their agenda."
Sen. Dick Durbin of Illinois picked up the theme by insisting that history will judge members of the Supreme Court based on whether they expanded freedom or restricted it.
"Let me be clear, when I talk about expanding freedom, I'm not talking about freedom for corporations," Durbin said."We the people does not include corporations." Nevertheless, the Roberts court "has certainly favored big business on issues like forced arbitration, corporate price-fixing, workplace discrimination cases, just to name a few."
Durbin said the penultimate pro-corporate ruling of the current court was the 2010 Citizens United case, in which the justices held 5-4 that corporations "have the same rights as living, breathing people to spend money on elections." A similar line of thinking resulted in Gorsuch's ruling in the Hobby Lobby case, later upheld by the Supreme Court, which allowed for-profit corporations to discriminate against employees based on the corporation's assertion of religious belief. "I don't recall ever seeing a corporation in the pews of Old St. Patrick's Church in Chicago. Our founders never believed that corporations were endowed with certain inalienable rights, but we're seeing the Supreme Court expand the rights of this legal fiction, a corporation, at the expense of the voices and choices of the American people. This strikes at the heart of the Supreme Court's promise to provide equal justice under the law."
For their part, Republicans on the panel repeatedly thanked Gorsuch for enduring that kind of attack in order to win confirmation. "If you follow the laws and the facts wherever it may lead, sometimes it's for the police, sometimes for a criminal defendant, sometimes it's for a corporation," said John Cornyn of Texas. "Sometimes it's for an employee. Sometimes it's for the government. Sometimes it's against the government. That's how the rule of law works, and that's good for all Americans."
Ted Cruz of Texas agreed. "Some Democrats have tried to slander Judge Gorsuch as being against the little guy because he has dared to rule based on the law, the law Congress has passed, and not on the specific identify of the specific litigants appearing before him," Cruz said. "A judge's job is not to protect the little guy or the big guy. A judge swears an oath to uphold the Constitution and to follow the law fairly, impartially and equally for every litigant, little or big."
Gorsuch delivered an opening statement that touched a lot on his journey to the bench and his family life but only a little on this judicial philosophy. The in-depth look at his views will come Tuesday when he faces questions from the lawmakers. Testimony from witness will come after the Q&A wraps up and could continue until Thursday.
Gorsuch did say that as judges, "sometimes the answers we reach aren't ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires."
Gorsuch said during his 10 years as a judge, "I have tried to treat all who come to court fairly and with respect. I have decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of nuclear waste pollution by corporations in Colorado. I have ruled for disabled students, prisoners, and workers alleging civil rights violations. Sometimes, I have ruled against such persons, too," he said.
"But my decisions have never reflected a judgment about the people before me—only my best judgment about the law and facts at issue in each particular case." Continued. "For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels."