Democrats Fret Over Originalism at Gorsuch’s Confirmation Hearing

• March 23, 2017 2:01 pm


Senate Democrats took to battering the idea of "originalism" at this week's Supreme Court confirmation hearings for Judge Neil Gorsuch.

Democratic Sens. Dianne Feinstein (Calif.), Amy Klobuchar (Minn.), and Patrick Leahy (Vt.) repeatedly jabbed Gorsuch for his textualist approach to the Constitution, which resembles that of the late Supreme Court Justice Antonin Scalia.

Reiterating his own writings during his confirmation hearing, Gorsuch made clear that the Supreme Court's job is to interpret what the law demands, not create new law.

The concept of originalism is at odds with the view held by many progressives that the Constitution is a "living" document.

As such, Democrats brought up melodramatic examples of what sorts of results originalist tendencies on the Supreme Court could bring about. Feinstein worried that dogmatic devotion to originalism would mean the U.S. would still have segregated schools, Leahy said he feared Gorsuch's approach was more of an "agenda" than a philosophy, and Klobuchar pressed Gorsuch on whether such an approach to jurisprudence meant a woman could not become U.S. president.

Gorsuch said at one point he does not like originalism being labeled as if it belongs to one political party or another. He told Feinstein that a good judge starts with precedent and "doesn't reinvent the wheel."

"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, the people's representatives, the lawmakers, have done," he said.

Gorsuch was nominated by President Trump in February to fill the seat left open by Scalia's death in 2016. Democrats are still angry about Republicans not granting a hearing last year to former President Obama's nominee, Judge Merrick Garland.

The gamble to not give a hearing or confirm Garland worked out for the GOP, as Trump's victory and the party's retention of Senate control essentially guaranteed a conservative justice being appointed to the high court.

Gorsuch impressed commentators this week with his smooth performance and command of the facts during the hearings. CNN legal analyst Jeffrey Toobin said the respected judge "knows so much more about everything he's being asked" than the senators posing questions to him.