U.S. Senator Angus King (I-Maine) today announced his opposition to the nomination of Judge Neil Gorsuch for the Supreme Court. Senator King also announced that he will oppose a procedural motion to end debate to move the nomination forward.
In his statement, Senator King said that, while he approached this nomination with an open mind, attended Judge Gorsuch’s hearing, and heard from Maine people on all sides of the question, several issues ultimately convinced him to oppose the nomination – from Judge Gorsuch’s glaring refusal to answer questions about his judicial philosophy during the confirmation hearing, to an appellate record that constrains the ability of the government to respond to national priorities and elevates the rights of corporations over their employees, to the unchecked flow of dark money that has gone into pushing his nomination. Given those concerns, and the significance of the lifetime appointment, Senator King said that he will oppose his nomination and vote ‘no’ on cloture.
Senator King’s statement is as follows:
“I am announcing today my opposition to the nomination of Neil Gorsuch to the United States Supreme Court. This has not been an easy decision; I have read many of Judge Gorsuch’s opinions, met with him personally, attended a portion of his hearing before the Judiciary Committee, watched other parts of the hearing, listened to the people of Maine on both sides of this question, and read all I could find on his background, judicial philosophy, and temperament.
“I started this process with an open mind and an inclination to support a nominee with this judge’s educational and judicial experience. I know that many of my colleagues on both sides of the aisle shared this initial impression. But as I got further into my research, and especially after watching his interactions with the Committee at his hearing, my opinion changed. Here is why –
“First – While at first coming across as sincere, personable and thoughtful, over time I found that his answers seemed, at best, increasingly evasive, and, at worst, simply not forthright. I fully understand that a nominee in this situation cannot opine on matters likely to come before the Court, but Judge Gorsuch’s steadfast refusal to answer reasonable questions as to his thinking on important legal issues and prior Supreme Court cases went far beyond this ‘future issues’ limitation. I found it particularly striking that he was willing to discuss some precedents (Youngstown Sheet & Tube Co. v. Sawyer or Brown v. Board or Education, for example), but not others (Citizens United, Roe v. Wade). If Youngstown was fair game for discussion and analysis (he likes it), why not Citizens United (does he like it or not)? At the end of the hearing, he left us with no real conclusions about his judicial philosophy and some confusion about where he stood on just about anything. As the hearing wore on, it became clear to me that this was a deliberate strategy to reveal as little as possible about what kind of justice he would be.
“Second – The nature of any Supreme Court nomination puts it into a different category than any of our other votes in the Senate; most of our votes are in some sense temporary – laws can be amended or repealed at any time, but a Supreme Court Justice is for life (in this case probably at least 30 years). There are no do-overs or second chances on this vote, which makes it all the more important to understand as specifically as possible who or what we are voting for.
“Third – From reading his opinions and analyzing his work as an appellate judge, however, a picture does emerge, not of an independent judge, but of a judicial activist well to the right of the current members of the Court, except perhaps Justice Thomas, on fundamental issues of constitutional structure. In short, a careful reading of his decisions and writings over the years has convinced me that he would favor a return to pre-1935 jurisprudence whereby the federal government (including Congress) was severely constrained in its ability to address urgent national priorities.
“This is the judicial version of ‘deconstruction’, a term now much in use within the current Administration. Although there are certainly examples of regulatory overreach, few of us would support eliminating laws and regulations which protect Maine air and water, insure safe workplaces, or rein in the excesses of the financial system which brought us to the brink of world-wide depression less than ten years ago.
“Fourth – Hobby Lobby. In this case which involved whether a corporation was a ‘person’ whose religious principles were abridged by its employees receiving insurance coverage for contraceptive services under the ACA, Judge Gorsuch began his concurring opinion with these astounding words, ‘All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.’
“Aside from the dubious proposition that a for-profit corporation can have a religion, consider the implications of the phrase ‘the wrongdoing of others’ – that a woman choosing how to manage her reproductive life is ‘wrongdoing’ which her corporate employer can limit or control, regardless of her religious or moral principles. (Note that we’re not talking about abortion here, but about contraception). I find it very hard to support a judge who would so easily elevate a corporate employer’s values over those of its workers, particularly women, in a case of this importance.
“Striking down an integral part of a major piece of legislation on such questionable grounds, by the way, is the definition of ‘judicial activism’.
“Fifth – aside from these concerns, my final decision has been driven in part by the expenditure of more than $10 million on behalf of this nominee by people who are purposely concealing their identities (on top of $7 million spent last year by what appear to be the same groups to stall and defeat the nomination of Merrick Garland, a judge of equal distinction and experience). My thinking is that while the hearing may have left many of us uncertain as to Judge Gorsuch’s philosophy and likely conduct on the Court, the sponsors of this campaign are not uncertain at all. They are not spending this huge sum on speculation; they know what they are getting, and that, in itself, raises serious concerns, particularly given the judge’s reluctance to discuss the Citizens United decision.
“Sixth – Finally is the question of how to vote on the cloture motion which the Majority Leader will file in connection with this nomination. Under current Senate Rules, it takes 60 votes to end debate on the nomination of a Supreme Court justice and proceed to a simple majority up-or-down vote on confirmation, just as it does on substantive legislation. On the one hand, this can be viewed as simply a procedural vote to end debate, but by consistent practice (I’ve had to vote on more than 350 cloture motions during my four years here), the 60 vote threshold is THE operative vote; if sixty votes are not obtained, the bill (or nomination) is dead.
“Although I came here deeply skeptical of this practice, I have come over time (even when I was a member of the majority caucus) to appreciate its role in forcing a modicum of bi-partisanship in connection with important issues. While I still believe in reform of the institution so that we can stop the logjam in Washington, it seems to me that for major policy decisions, like a lifetime appointment, it is not unreasonable to require 60 votes in order to garner broader, more sustainable bipartisan support, which I think is in the interest of the nation.
“Although there could be circumstances where it might be appropriate to support cloture and then vote against the nomination, the current status of this procedure does not strike me as such a case. If I am opposed to this nomination, it seems logical to oppose cloture because under the current rules, this would defeat the nomination. To support cloture in the current circumstance would make me guilty of ‘complicity’, to borrow Judge Gorsuch’s memorable term.
“If Judge Gorsuch is ultimately confirmed, I sincerely hope my concerns and fears will be proven wrong; I would be delighted if this is the case. But in good conscience, I must vote my convictions and not my hopes – and my convictions in this case tell me ‘no’.”