Voting along party lines, the Senate Judiciary Committee on Monday advanced the nomination of Judge Neil M. Gorsuch for the U.S. Supreme Court, as Democrats hammered the nominee on a special education case decision he had written and for their perception that he did not embrace the landmark Brown v. Board of Education desegregation decision in strong enough terms.
The 11-9 vote sets up a showdown later this week on the Senate floor, with most Democrats apparently embracing a filibuster strategy the would require 60 votes to end debate, and Republicans saying they are willing to change Senate rules to permit a majority vote on the nomination.
Only three Democrats out of the 48 who are members or who caucus with the minority party have indicated they will vote for Gorsuch, President Donald Trump’s nominee to succeed the late Justice Antonin Scalia. (Not all senators have made their positions known.)
Assuming they could not reach the number needed to end a filibuster, Senate Republicans have said they would go for the so-called nuclear option, voting to change rules to eliminate filibusters for Supreme Court nominations.
Meanwhile, Democrats followed up a theme of last month’s confirmation hearing by criticizing Gorsuch for his 2008 opinion in the U.S. Court of Appeals for the 10th Circuit, in Denver, that under the Individuals with Disabilities Education Act schools must provide a “merely more than de minimis” education program to students with a disability.
In that decision, Thompson R2-J School District v. Luke P., Gorsuch had added the word “merely” to the phrase “more than de minimis,” which had come from other cases. The decision had rejected private school tuition reimbursement for a boy with autism because the boy’s progress under his public school special education program had met the “merely more than de minimis” standard.
In a March 22 decision in Endrew F. v. Douglas County School District, the Supreme Court rejected the standard Gorsuch has formulated in the Luke P. case, ruling unanimously that the IDEA requires a higher standard. The Democrats on the Judiciary Committee questioned Gorsuch about his earlier ruling within hours of the Supreme Court ruling.
A Focus on Luke P. Case
On Monday, they again seized on the Luke P. case as one of the reasons they would be voting against Gorsuch’s confirmation.
“The word ‘merely’ made a narrow interpretation of the law even narrower,” said Sen. Dianne Feinstein of California, the ranking Democrat on the committee. The Luke P. decision was an example of Gorsuch “going out of his way to impose his views of what the law should be,” she said.
Sen. Richard J. Durbin, D-Ill., said that with his opinion in Luke P., Gorsuch was “reaching into another circuit, and he was embellishing another standard, but with the word which the Supreme Court found that kids like Luke P. would get no education at all.”
Sen. Amy Klobuchar, D-Minn., who like Durbin had questioned Gorsuch about his Luke P. decision less than two hours after the Supreme Court’s decision in Endrew F., said she had considered his answer from that day that he was applying 10th Circuit precedent.
“So I spent a lot of time looking at that,” Klobuchar said. “I simply don’t agree, when you look at the cases,” that the judge was bound by precedent. She repeated her view that some of the language from two previous cases Gorsuch had relied on in Luke P.—one a 10th Circuit precedent, the other from another circuit—was mere “dicta,” or language not essential to the holding of the case.
“I know I’m in the weeds here” with such a reference, Klobuchar said. “The old case said ‘more than de minimis.’ He added the word ‘merely.’ ... I don’t believe he was bound by precedent, and even if he was, which he wasn’t, he changed [the 10th Circuit standard] to ‘merely’.”
Sen. Mazie Hirono, D-Hawaii, referred to the student in the Luke P. case by his full name, after the student’s father had testified against Gorsuch during the confirmation hearing.
“The narrow interpretation Judge Gorsuch took on the Individuals with Disabilities Education Act would have left Luke Perkins and thousands of special needs children like him without a chance to make real educational progress,” she said. “The Supreme Court unanimously rejected and criticized Judge Gorsuch’s narrow standard in a case decided just two weeks ago.”
Republicans defended Gorsuch against that attack and others.
“If you think Judge Gorsuch was wrong in Luke P. or TransAm Trucking, then make a legal argument,” Sen. Mike Lee, R-Utah said, in reference also to an employment decision for which the nominee has faced a barrage of criticism, the case of the “frozen trucker.” (Klobuchar said she was responding to Lee’s challenge by making a legal argument about Gorsuch’s Luke P. decision.)
Lee said Democrats where focusing on “a few cherry-picked cases out of 2,700" that Gorsuch had decided, and they were ignoring ones where he had ruled for “the little guy.”
Lee cited A.M. v. Holmes, a case in which Gorsuch wrote a dissent in favor of a New Mexico 7th grader whose disruption in a gym class, including “fake burps,” led to his arrest for violating a state law against disrupting the educational process.
Sen. John Kennedy, R-La., also approvingly quoted the nominee’s dissent in the Holmes case, in which Gorsuch had said “a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”
Kennedy said: “That, my colleagues, is not an agenda. That is a judge.”
Brown Debate Continues
Some committee Democrats also criticized Gorsuch over his exchanges with Blumenthal about the 1954 Brown decision, suggesting they were emblematic of the nominee’s lack of candor and overly cautious answers.
“Judge Gorsuch said it was the correct application of precedent,” Feinstein said. “To be clear, when he was asked if he supported the result in Brown, he refused to answer.”
Sen. Patrick D. Leahy, D-Vt., said some of Gorsuch’s answers, including to questions about Brown, were “excruciatingly evasive.”
“Some of these questions were not intended to be difficult,” Leahy said.
Sen. Lindsey Graham, R-S.C., said the Democrats’ pursuit of Gorsuch’s views on cases such as Brown and Griswold v. Connecticut, a 1965 decision that struck down a state’s ban on contraception violated a right to marital privacy, was “just political theater.”
“To say that this man somehow wished Brown versus the Board of Education wasn’t decided, [and] somehow wishes for he days of pre-Griswold, is a bit of a stretch,” Graham said.
Senate Republicans hope to have Gorsuch confirmed by the full chamber, one way or another, by Friday, April 7.
A version of this news article first appeared in The School Law Blog.