While being questioned by Sen. Dick Durbin today, during his second day of confirmation hearings before the Senate Judiciary Committee, Supreme Court nominee Neil Gorsuch essentially said marriage equality is settled law.
Durbin, an Illinois Democrat, was grilling Gorsuch on his relationship with John Finnis, his dissertation adviser at Oxford University. Finnis has made some antigay statements in his writings, such as "a life involving homosexual conduct is bad even for anyone unfortunate enough to have innate or quasi innate homosexual inclinations."
Durbin brought up the fact that Finnis gave a deposition in the 1990s in support of Colorado's effort to defend Amendment 2, a voter-approved measure that barred the state or any municipality within it from adoption or enforcing laws banning discrimination based on sexual orientation. (A lawsuit blocked it from going into effect, and it was struck down by the Supreme Court in 1996.)
"Finnis argued that antipathy toward LGBT people, particularly gay sex, was rooted not just in religious tradition but Western law and society at large," Durbin said. "He referred to homosexuality as bestiality in the course of this as well. Were you aware of that?"
The nominee responded that he didn't recall specifics of Finnis's involvement in the case, and that Durbin and the rest of the Senate should focus on Gorsuch's own work as a judge. Gorsuch added that he treats all people in his courtroom as individuals who merit equal justice, and when Durbin asked if that extended to people of different sexual orientations, Gorsuch said, "The Supreme Court of the United States has held that single-sex marriage is protected by the Constitution."
Gorsuch's 2004 dissertation suggested he did not believe the Constitution protected that right, and some of his writings have criticized supporters of marriage equality for using the courts rather than legislation to win the right. But his answer to Durbin signals that he may not be willing to overturn the high court's 2015 marriage equality decision, should a case come before him.
Earlier today, he showed reluctance to overturn Roe v. Wade, the 1973 Supreme Court ruling that established national abortion rights -- something many conservatives would like to see overturned and liberals would like to see upheld. Donald Trump had promised to appoint "pro-life" justices to the high court, in the mold of the late Antonin Scalia, whom Gorsuch would succeed. On marriage equality, Trump has sometimes said he'd appoint justices who'd overturn it and other times said it's settled law.
"Part of being a good judge is coming in and taking precedent as it stands, and your personal views about precedent have absolutely nothing to do with the job of a good judge," Gorsuch said in response to Republican Sen. Charles Grassley of Iowa, chairman of the Senate Judiciary Committee. When Grassley then asked if Roe was decided correctly, Gorsuch said it was precedent and has been affirmed several times, and "a good judge will consider that precedent worthy as treatment of precedent like any other."
Later, Durbin asked Gorsuch about employers querying female applicants on plans to start a family. This issue came up in the past few days, with a former student of Gorsuch's at the University of Colorado Law School saying that in one class he suggested that women manipulate employers to obtain maternity benefits. (Another student had said the first student misunderstood his intention, and several women who've worked with Gorsuch have called him a supportive employer and mentor.)
"Do you believe there are ever situations where the cost to an employer of maternity leave can justify an employer asking only female applicants and not male applicants about family plans?" Durbin asked. He then brought up the statement made by Gorsuch's student.
Gorsuch said he was eager to share his side of the story, which was that he brought up a situation in which young lawyers might be asked inappropriate questions when seeking employment. In the class, on legal ethics, he said he asks if applicants get inappropriate questions about family planning, and "I am shocked, every year, Senator, by how many young women raise their hand." His mother received questions like that as a lawyer in the 1960s, he said, adding, "I am shocked it still happens every year that I get women, not men, raising their hand to that question."
Later in the day, Gorsuch made his first major public criticism of Trump. Democratic Sen. Richard Blumenthal of Connecticut had met privately with Gorsuch in February, and the senator said Gorsuch told him then that Trump's criticism of the judiciary was "disheartening" and "demoralizing." When the media reported that information, Trump immediately tweeted that it was a misrepresentation of Gorsuch's conversation with Blumental, even though it was confirmed by other sources.
Blumenthal pressed Gorsuch on the matter today, citing Trump's claim that Gonzalo Curiel, the federal judge who refused to dismiss a fraud case brought against Trump University, could not be objective because he is of Mexican descent. Gorsuch responded, "When anyone criticizes the honesty or integrity or the motives of a federal judge, I find that disheartening, I find that demoralizing, because I know the truth."
"The remark is Gorsuch's harshest public rebuke of the president who nominated him to date," notes NBC News, as well as "the same sentiment (and word choice)" on which Blumenthal quoted him last month.
Today's hearing also saw further criticism of Gorsuch on an issue brought up Monday -- a case in which he held that a trucking company was within its rights to fire a driver who left his cargo behind in below-zero weather for his own safety. Gorsuch currently is a judge on the U.S. Court of Appeals for 10th Circuit, and he was part of a three-judge panel that ruled on the case. Two ruled in the trucker's favor, saying a federal transportation law protected the driver from being fired under these circumstances, but Gorsuch dissented, saying the law did not.
The brakes on the truck's trailer had frozen, but the truck cab was operable, although its heater was not working. After waiting hours for help and with his legs going numb, the driver, Alphonse Maddin, detached the trailer and drove away in the cab to get gas and warm up, returning after about 15 minutes. He was fired for leaving the trailer after a dispatcher told him to wait. At issue was a law protecting him from firing for refusal to operate an unsafe vehicle (pulling the trailer when its brakes were not working would have been hazardous to the driver and others). But Gorsuch's dissent said since Maddin did operate his truck cab, he wasn't covered by the law.
"It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle," said Sen. Al Franken, the Minnesota Democrat who was once a writer and performer on Saturday Night Live. "Now, I had a career in identifying absurdity, and I know it when I see it, and it makes me question your judgment."
Franken noted that judges do not have to follow the letter of the law when it would result in an absurd decision, but Gorsuch responded that the so-called absurdity doctrine is usually invoked when there's a typographical error in the law, and it was never presented in this case.
Earlier, Durbin had confronted Gorsuch about the case as well, noting that Maddin's options were very limited in the incident, and that he was subsequently unable to obtain another job in trucking. "My job is to apply the law that you write," Gorsuch responded. "The law as written said he would be protected if he refused to operate. By any plain understanding, he operated the vehicle. ... I said it was an unkind decision, I said it might have been a wrong decision, a bad decision, but my job isn't to write the law, senator, it's to apply the law. If Congress passes a law saying the trucker in those circumstances gets to choose how to operate his vehicle, I'll be the first in line to enforce it."
Durbin also grilled Gorsuch on the Hobby Lobby case, saying Gorsuch had elevated the company owners' religious beliefs about contraception above their employees' beliefs -- the company had sued over the Affordable Care Act's mandate to provide contraceptive coverage. Durbin questioned whether a company could practice religion, but Gorsuch said that under federal law, a company can. On the appeals court, Gorsuch had ruled in favor of the company, and the Supreme Court later did as well.
On another religious question, Democratic Sen. Patrick Leahy of Vermont pressed Gorsuch about Trump's ban on entry to the U.S. by citizens from certain Muslim-majority countries -- two versions of the ban have been blocked by federal courts. Gorsuch said he could not address specific cases because the matter is still being litigated, but stressed he would hear such challenges objectively.
"Anyone, any law is going to get a fair square deal with me," he said. "My job is to treat every litigant as I would wish to be treated."
Gorsuch will return for a third day of hearings Wednesday. Find video and a transcript of the full proceedings at C-SPAN. Find a wrap-up of the first day of hearings here.