March 28, 2017

Hirono Urges “Loud & Steadfast” Opposition to Gorsuch

On the Senate floor, Senator Mazie K. Hirono called for continued “loud and steadfast” opposition to the nomination of Judge Neil Gorsuch to sit on the Supreme Court. Senator Hirono made her case for her “no” vote, citing Judge Gorsuch’s refusal to answer questions about his judicial philosophy that had be addressed by previous Supreme Court nominees.

From Senator Hirono’s remarks:

“It was only through the voices of Americans who were loud and steadfast in confronting Trumpcare that it failed. These are the people for whom the need for justice is often most urgent.

“An understanding of these people, their lives, and how they would be impacted by the court is what I found to be missing from Judge Gorsuch’s view of the law. It is these same voices I am listening to now.

“Judge Gorsuch should have been more open with the Committee about how he would approach the difficult and important cases that come before the Supreme Court. But time and time again Judge Gorsuch avoided answering questions, telling us his judicial philosophy and view of the law were irrelevant to our consideration of his nomination.”

Senator Hirono’s full remarks, as prepared for delivery:

During last week’s hearing on Donald Trump’s nominee to the Supreme Court, Neil Gorsuch, I raised serious questions about what is at stake for the future of our country. It is a mistake to think that the confirmation process for a lifetime appointment to our Nation’s highest court is only about the nominee. It isn’t.

The real focus and the real heart of this decision lies in the struggles that working families, women, differently-abled, people of color, the LGBTQ community, immigrants, students, seniors and our native peoples face every day. These are the everyday Americans who will be impacted by the decisions a Justice Gorsuch would make. These are the people who would have been hurt by Donald Trump and the Congressional Republicans in their failed attempt to repeal the Affordable Care Act. 

Donald Trump and the Republicans in Congress fought for a plan that would callously throw Americans by the tens of millions out in the cold without health insurance, and would make the lives and health of millions more precarious. It was only through the voices of Americans who were loud and steadfast in confronting Trumpcare that it failed. These are the people for whom the need for justice is often most urgent. 

An understanding of these people, their lives, and how they would be impacted by the court is what I found to be missing from Judge Gorsuch’s view of the law. It is these same voices I am listening to now.

Judge Gorsuch should have been more open with the Committee about how he would approach the difficult and important cases that come before the Supreme Court. But time and time again Judge Gorsuch avoided answering questions, telling us his judicial philosophy and view of the law were irrelevant to our consideration of his nomination.

The well-funded campaign to put Judge Gorsuch on the Supreme Court, fueled by millions of dollars of money from unnamed donors, has attempted to create a narrative about Judge Gorsuch and the stakes of this nomination. This is a narrative woven with Ivy League credentials and endorsements, but not revealing at all about Judge Gorsuch’s judicial philosophy – the heart he would bring to his view of the law.

During the hearing, many of my Republican colleagues echoed the view – that credentials are enough, and that our real questions about Judge Gorsuch’s record and philosophy are somehow irrelevant or even inappropriate. Certainly Judge Gorsuch did his part, telling us time and time again that his words, his views, his writings, and his clearly expressed personal views had no relevance to what he would do as a judge.

I disagree.

In my view, there is a great deal of difference between how Judge Gorsuch, as Justice Gorsuch, would approach the kind of tough cases that reach the Supreme Court and how, say, a Justice Merrick Garland would. We know that Justice Scalia and Justice Ginsburg, both legendary jurists and close friends, would reach dramatically different results in cases that matter deeply in the lives of millions. Cases like Shelby County. Like Lilly Ledbetter. Like Hobby Lobby.  Like Roe v. Wade

Justice Scalia and Justice Ginsburg differed in how they viewed the important cases that came before them. This is why a Justice’s judicial philosophy is important. Donald Trump knew this too when he set forth his very clear litmus test for his Supreme Court pick. To paraphrase, he wanted a Justice who would adhere to a broad view of the 2nd Amendment, who believes corporations are entitled to “religious freedom” at the expense of the rights of their employees, and who would overturn Roe v Wade “automatically.” 

In Judge Gorsuch, Donald Trump selected a nominee that passed his litmus tests. When we asked Judge Gorsuch about his opinions in specific cases like that involving the terrible choice facing Alphonse Maddin between freezing to death or being fired, he told us we should look instead at his whole record. 

When I examined his whole record, I saw too little regard for the real world impact of his decisions, and a refusal to look beyond the words to the meaning and intent of the law, even when his decisions lacked common sense. When we asked about decisions where Judge Gorsuch seemed to adopt strained interpretations that narrowed laws meant to protect worker safety, he said simply that he was a judge and that he didn’t take sides. Yet too many times, his narrow interpretations led to decisions that were on the side of big corporations and against the side of the little guy. 

When asked to respond, he said that if we didn’t like the result, it was because the statute was too limited or unclear and Congress should do better. 

We asked Judge Gorsuch about his decision in Hobby Lobby, which found an expansive new right to religious liberty for a corporation that employs thousands of people. He did not explain how he assessed the terrible impact this decision had for the thousands of working women at the company who would now be denied access to contraceptive coverage. 

When I met with Judge Gorsuch he told me he had a heart.  After four days of hearings I still don’t know what’s in his heart. I would have liked Judge Gorsuch to have been more open so that we could have had a real discussion about what the law is and who the courts protect.

What we got instead were platitudes about the work of the courts that came straight from a Norman Rockwell painting. 

I did agree with him that Article III courts are there to protect minority rights. Article III of the Constitution protects the independence of the Supreme Court and lower federal courts, and gives enormous authority to judges and Justices to determine how to apply the law to the cases before them to protect minority rights. 

It is critical that before we decide to grant Judge Gorsuch a lifetime appointment to the Nation’s highest court, the Senate is able to gain an understanding of his approach to the law.

At our Judiciary Committee hearing, I asked Jeff Perkins, the father of a young boy with autism, about the impact Judge Gorsuch’s decision on his son’s education progress at and outside of his new school. The case involved the protections of the Individuals with Disabilities Education Act (IDEA), which Judge Gorsuch’s decision narrowed to a point that they are virtually meaningless. 

The new school Luke Perkins attended made little effort to ensure that the skills he was developing in school were translating at home. And as a result Luke severely regressed.  Experts in autism, psychology, and occupational therapy testified on Luke’s behalf that the school was seriously neglecting his needs. An impartial hearing officer, an administrative law judge, and a federal district court all agreed that Luke’s regressions showed that the school was not providing him with a “free appropriate public education” as required by the Individuals with Disabilities Education Act.

Judge Gorsuch disagreed, and decided the school had merely more than “de minimis” responsibility to do more.

Jeff Perkins, Luke’s father, said that he knew Judge Gorsuch’s decision would negatively impact thousands of families with special needs children. It broke his heart. Judge Gorsuch’s extraordinarily narrow interpretation of the IDEA was rejected unanimously by the Supreme Court last week. 

In his opinion for the unanimous Court, Chief Justice Roberts concluded that the minimal standard determined by Judge Gorsuch was clearly at odds with the purpose of the law for children who are not progressing along with their peers.  Chief Justice Roberts wrote:  

“The goals may differ, but every child should have the chance to meet challenging objectives…. 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.”

When asked by my colleague Senator Durbin of Illinois why he wanted to “lower the bar so low,” Judge Gorsuch, referring to Luke’s case, responded:

“If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me. Heartbreaking. But the fact of the matter is I was bound by circuit precedent.”

Heartbreaking or not, Judge Gorsuch still found against the autistic child. Thankfully, the Supreme Court disagreed with Judge Gorsuch’s wrong decision.

It was wrong because remedial legislation, such as the IDEA should be broadly interpreted in favor of the group being protected. And it was wrong because the courts are not an innocent bystander.

Their decisions have real world impacts for thousands or even millions of people beyond the parties in a particular case. This is especially true of the Supreme Court, which issues decisions that don’t just reach those in the case in front of them—the frozen trucker, women who work at Hobby Lobby faced with lack of critical health care.

They also reach millions of others impacted by interpretations of the law made by the Court in those decisions. The Supreme Court does not just interpret our laws.  The Supreme Court is an affirmation of our country’s values. It shapes our society.

When we began the hearings on Judge Gorsuch’s nomination, I said a Supreme Court vacancy isn’t just another position we must fill in our federal judiciary. A Supreme Court vacancy is a solemn obligation we must fulfill for our future generations.

The central question for me in looking at Judge Gorsuch and his record, in listening carefully through three days of hearings is whether he would be a Justice for all, or a Justice for some.  

Regrettably I do not believe Judge Gorsuch will be a justice for all of us.

I will oppose his nomination and I urge my colleagues to do the same. This is simply too important for the future of America and its values.