WASHINGTON – Minnesota senators sharply questioned federal Appeals Court Judge Neil Gorsuch during Wednesday’s Supreme Court confirmation hearings, grilling him on whether he’d be protect the interests of ordinary people over corporations.
Amy Klobuchar and Al Franken are among the nine Democrats on the 20-member Senate Judiciary Committee, where President Trump’s nominee coasted through three days of hearings and will receive a vote next month before his confirmation goes to the full Senate.
Franken assailed corporate policies that prevent customers and employers from filing lawsuits and restrict them instead to settle grievances through arbitration – what he called a permission slip for corporations to opt out of the civil justice system.
He asked Gorsuch if it was fair to enforce arbitration in all cases, describing how a Minnesota soldier who lost his legs in Iraq saw his house foreclosed upon and was prevented from filing a class action suit involving other service members.
“I’m a big believer in jury trials,” said Gorsuch, adding that he’d worked with colleagues to make litigation cheaper, faster and more accessible.
When Franken asked if the blocking of the suit was unconscionable, Gorsuch said that if he was a lawyer that would be an argument -- and that he’d possibly ask Congress to revisit the nearly century-old Federal Arbitration Act.
Franken said he was worried about various 5-4 decisions on the Supreme Court under Chief Justice John Roberts that had restricted people’s rights to a jury trial “and that’s why frankly there’s so much at stake here … There’s a sort of core group of cases in which the Roberts court continually has ruled in favor of corporations and against workers and consumers that’s what this is about.”
Noting that Trump’s election was supposed to be about the little guy, Franken added that Democrats were trying to figure out whether they’d see a continuation of bias toward big money “where the weight shifts against the little guy and for the big guy.
Sen. Ben Sasse (R-Neb.) said Franken’s discussion of arbitration had been compelling, “but I don’t see exactly how that applies to the judge sitting in front of us.” He said that was a matter that should be handled through legislation.
Klobuchar pressed the nominee on the unanimous Supreme Court decision issued Wednesday that required schools to provide better services for special education students. The ruling rejected a standard set by Gorsuch on the appeals court in 2008, in which he ruled that a Colorado school district didn’t have to pay for the private school tuition of an autistic boy.
“A student offered an educational program providing ‘merely more than de minimus progress from year to year can hardly be said to have been offered an education at all,” the Supreme Court ruled.
Klobuchar told Gorsuch that requiring educational standards to be merely more than "de minimus,” or minimal, creates more of a ceiling than a floor for students.
Gorsuch said that he had followed precedent in his ruling, and questioned that Klobuchar would suggest that he and other appeals judges were out of the mainstream in their legal reasoning.
Later in the day, Klobuchar also questioned him about antitrust issues, though Gorsuch, who has taught antitrust law, was somewhat circumspect on the topic. When she asked him if the court had made antitrust enforcement too difficult, and what he said in his classes about it, Gorsuch said that he tried to expose his students to all views on antitrust issues so that they could make up their own minds.
“I believe that’s an important function as a teacher, not to be a doctrinaire but to be challenging,” Gorsuch said.
He did acknowledge the problems of courts making antitrust enforcement too difficult, saying they would lead to a lack of competition that produced higher prices and lower output, and praised the original federal regulations in that area for still being vital today.
Additionally, Klobuchar asked how he taught a 2008 controversy regarding the Federal Trade Commission’s criticism that a report by the U.S. Department of Justice on cracking down on monopolies was too favorable to big corporations.
Gorsuch said he tried to expose his students to all the learning that’s available and that his course was comprehensive and one of the more difficult classes at the law school.
“So you don’t want to weigh in on this debate?” she asked.
“Oh, senator!” he said. “There’s no way you’re going to get me to weigh in on this debate.”
Photo at top: Sen. Dick Durbin (D-Ill.), second left, talks with Sens. Amy Klobuchar (D-Minn.), Christopher Coons (D-Del.) and Al Franken (D-Minn.) before Durbin questioned Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, of the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, in Washington, March 22, 2017. Photo by Gabriella Demczuk of the New York Times.