Judge Neil Gorsuch appears March 20 at his confirmation hearing.
Judge Neil Gorsuch appears March 20 at his confirmation hearing. (Diego M. Radzinschi / ALM Media)

Democratic senators, repeatedly raising the blocked elevation of Merrick Garland, set a critical tone Monday as the U.S. Supreme Court confirmation hearing for Judge Neil Gorsuch got underway in Washington on Capitol Hill.

Republicans praised Gorsuch as a nominee who deserved quick approval. Democrats in their opening statements made few positive remarks. The Senate Judiciary Committee wants to vote April 3 on Gorsuch’s nomination, weeks before the U.S. Supreme Court is set to wrap up its argument calendar.

Several Democrats referred to the Republicans’ refusal to consider Garland, former President Barack Obama’s nominee for the vacancy, as a background factor in their thinking about Gorsuch. President Donald Trump appointed Gorsuch, a federal appeals judge, on Jan. 31.

“I just want to say I am deeply disappointed that it’s under these circumstances that we begin our hearings,” Sen. Dianne Feinstein, D-California, referring to the Garland snub, said.

Several former Gorsuch law clerks were in attendance, as were other lawyers including Gregory Garre, a partner at Latham & Watkins who was a U.S. solicitor general in the George W. Bush administration. Gorsuch attended the hearing with family and supporters sitting behind him.

The pointed criticism could signal a solid block of opposition to Gorsuch’s nomination by most if not all the 44 Democrats in the Senate.

Feinstein, the ranking Democrat on the committee, also raised the so-called “Frozen Trucker” case in which Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, wrote a dissent.

The 2016 ruling sided with a truck driver who was fired for safety actions he took while his truck’s brakes were frozen in sub-zero temperatures. In dissent, Gorsuch said the firing may not have been “wise or kind,” but it was legal.

Sen. Dick Durbin, D-Illinois, also mentioned the case, describing the plight of the driver who, standing in the cold on the side of a road, was having breathing problems.

“Not as cold as your dissent,” Durbin told Gorsuch.

Feinstein pointed to Gorsuch’s criticism of the Chevron doctrine, which gives deference to executive agencies, and to his embrace of originalism, which favors original meaning and text in interpreting statutes and the Constitution. She said originalism is “really troubling” and “severely limits” the genius of the Constitution.

Sen. Patrick Leahy, D-Vermont, said Trump nominated Gorsuch at the behest of “extremist groups,” an apparent reference to the Federalist Society and the Heritage Foundation, both of which recommended Gorsuch.

Committee chair Sen. Chuck Grassley, R-Iowa, opened the hearing with an effort to contextualize the criticism that would be brought against Gorsuch.

“We’ll hear that when you rule for one party and against another in a case, it means you must be for the winner and against the loser,” Grassley said. “Senators will cite some opinion of yours, and then we’ll hear that you’re for the ‘big guy,’ and against the ‘little guy.’”

Grassley continued: “You’ll scratch your head when you hear this, because it’s as if you judges write the laws instead of us senators. But if Congress passes a bad law, as a judge you’re not allowed to just pretend we passed a good law. The oath you take demands that you follow the law, even if you dislike the result. So if you hear that you’re for some business or against some plaintiff—don’t worry. We’ve heard it all before. It’s an old claim, from an even older playbook.”

Sen. Mike Lee, R-Utah, praised Gorsuch as “a man of integrity, a man of character, and a man of faith,” adding that while in private practice, he once argued before Gorsuch. “You are one of the best judges in the country,” Lee told Gorsuch.

Gorsuch was expected to deliver his opening remarks Monday afternoon. Hogan Lovells partner Neal Katyal, who has written in support of Gorsuch’s nomination, was named as one of three people who will introduce Gorsuch. The confirmation hearing is set to last at least until Thursday.

Copyright The National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.