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Klobuchar & Franken Grill Gorsuch, End Up Getting Burned

One thing was confirmed this week during Supreme Court nominee Neil Gorsuch’s hearings: There is such a thing as a dumb question. And an article by political blog PoliZette credited three out of the top five “dumbest questions” to MN Senators Amy Klobuchar and Al Franken.

First, Sen. Klobuchar tried to discredit original meaning jurisprudence by questioning whether masculine pronouns in the Constitution would prohibit women from becoming president under Gorsuch’s reasoning.

The questioner: Sen. Amy Klobuchar (D-Minn.)

The issue: Klobuchar pressed Gorsuch about his views on originalism, a concept in which judges adhere to the strict meaning of the Constitution when it was written.

The question: “So when the Constitution refers, like, 30-some times to ‘his’ or ‘he’ when describing the president of the United States, you would see that as, well back then, they thought a woman actually could be president of the United States even though women couldn’t vote?”

klobuchar-gorsuchThe answer: “I’m not looking to take us back to quill pens and horses… Of course women can be president of the United States. I’m the father of two daughters. And I hope one of them turns out to be president.” In response to a similar question about the Air Force, which did not exist at the time of the Constitutional convention, he said, “Senator, I think the generals of the Air Force can rest easy.”

Gorsuch with the mic drop.

Next Sen. Franken, as a former comic, tried to score points by focusing on “absurdity doctrine” but couldn’t quite deliver the punchline.

The questioner: Sen. Al Franken (D-Minn.)

The issue: Gorsuch’s by now well-known dissent in the TransAm Trucking v. Administrative Review Board case. The 10th U.S. Circuit Court of Appeals ruled last year that the company had to rehire a trucker who had been fired for leaving a malfunctioning rig in freezing weather. Several senators have browbeat the nominee already for his dissent, but Franken couldn’t resist taking another pass Tuesday.

The question: Referring to testimony that the driver was suffering hypothermia and that the brakes were failing, the senator said, “I don’t think you’d want to be on the road with him, would you, Judge?”

The answer: Gorsuch said he does not blame the driver for doing what he did and added that he empathizes with him but explained —again— that his dissent was based on the language of the statute, which protected a worker from dismissal for refusal to operate an unsafe vehicle. But the driver did operate the truck, he said. Gorsuch also explained that Franken incorrectly described the doctrine of absurdity, which the senator had argued allowed for a departure from applying the statute as literally written. The judge said that neither side in the case even raised that issue. “And it usually applies when there’s a scrivener’s error, not when we just disagree with the policy or the statute,” he said.

transcript further details the exchange:

GORSUCH: Senator, a couple of things in response to that, if I might. Going back, the absurdity doctrine argument was never presented to the court. And it usually applies in cases where there is a scrivener’s error, not where we just disagree with policy of the statute. So I’d appreciate the opportunity to respond there.

FRANKEN: When there is a scrivener there.

GORSUCH: Scrivener’s error.

FRANKEN: Error. Okay. I’m sorry.

This case brings up the head vs. heart issue. Should judges follow the law or follow their feelings?

Obama’s Supreme Court appointees —Sonia Sotomayor and Elena Kagan— believed the former, stating, “judges can’t rely on what’s in their heart” and “it’s the law all the way down” during their confirmation hearings. Numerous times during the hearing Gorsuch told the senators he was doing his job as a judge, applying the law as written, and they were the ones who had the power to change or make new laws as necessary. 

Finally Sen. Franken, somewhat desperately, demanded Judge Gorsuch attempt to get into the heads of the political players in the Trump administration.

The questioner: Sen. Al Franken (D-Minn.)

The issue: More guilt association. Franken referred to comments by White House Chief of Staff Reince Priebus at the Conservative Political Action Conference that Gorsuch could mean the “change of potentially 40 years of law.” At the same conference, White House strategist Stephen Bannon contended that the administration’s goal was the “deconstruction of the administrative state.”

The question: “What do you think that Mr. Priebus was talking about? Do you think he was saying that you’d be in a position to shape the court’s decisions for 40 years? Or was he suggesting that you could reach back 40 years?” About Bannon, he asked if the comments applied only to Cabinet nominees. “Or do you think the administration also sees a role here for it’s judicial nominees?”

The answer: Gorsuch said he could not speak for others. “Respectfully, Senator, Mr. Priebus doesn’t speak for me, and I don’t speak for him,” he said. He had a similar response to the Bannon question: “Respectfully, that’s a question best posed to Mr. Bannon.” 

Klobuchar and Franken may have done the grilling, but they also were the ones who got burned.

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