Doesn't matter that drafters were racists or sexists, because they were. The law protects everyone, says Gorsuch. The original meaning of those words stands. Equal protection of the laws does not mean separate -- it means equal.
Guarantee of equal protection is a fantastic thing, says Gorsuch. That's why it is chiseled in Vermont marble above the Court.
Feinstein: I know what life was like. I have heard of young women killing themselves, and of passing the plate in college to allow someone to go to Mexico for an abortion. The law has finally progressed. We now have the right to vote, but still fighting for equal pay and equal work.
Feinstein: Life changes, and the originalism that the days when the constitution was written would bring people backwards. Women were not regarded as equal.
Apparently the Court just ruled on the IDEA case presenting the issue that was just discussed in the hearing.
Gorsuch: Talking about importance of women in his life, says no one is looking to return us to horse and buggy days.
Regarding the IDEA case that was discussed in the hearing, SCOTUS just found that IDEA requires a school to offer an IEP reasonably calculated to allow the student to progress in the child’s circumstances
Feinstein: I have been through this before. I listened to Arlen Specter tell the chief justice you have described "super-precedent," but every Republican judge has voted the other way.
Feinstein: Everything that young women take for granted today would be struck out with one decison.
Gorsuch: I can't promise you what I would do in a particular case.
Gorsuch: I know you appreciate my position. I will consider precedent, I have written a book on it.
Gorsuch: It was years of toil to put together a mainstream consensus on the subject. I didn't expect anyone to ever read it.
Gorsuch: I care deeply about the law and following the rules of the law. I can't promise you more.
Feinstein: You have been better at avoiding specifics than anyone who came before you. But for Democrats, we need to know more. j
Feinstein: Let's talk about assisted suicide. I have seen people die horrible deaths when there was no hope, my father begging me for help when he was dying.
Feinstein: The suffering becomes so pronounced that this is real. It's very hard. Tell us what your position is in the situation with California's End of Life Option Act.
Gorsuch: I can discuss this because I have written about it, in my book.
Gorsuch: I wrote that I agree with the Court in the Cruzan decision that refusing treatment. . . . I have been there with my dad. {choked up for a second}
Gorsuch: The right to refuse treatment is a right in common law.
Feinstein: What if you can't handle the pain?
Gorsuch: Anything necessary to alleviate pain would be appropriate, even if it caused death. As long as it wasn't knowing.
A more solemn feeling in the hearing when discussing end of life issues
Senator Graham is up next, slightly out of order because of other commitments.
Graham is quoting Leahy from what I assume will be earlier confirmation hearings. Suggesting that there is a separate standard for Democratic and Republican nominees -- e.g., the Democrats are now pressing Gorsuch on specifics when they didn't for, e.g., Kagan and Sotomayor.
Graham: Do you agree that it is the law of the land that late-term abortions have been limited by Congress and upheld by the Court?
Gorsuch: In certain circumstances, yes.
[Graham spent a lot of his time yesterday talking about abortion too.]
Graham: There will be a lot of issues coming before the Court because Americans don't agree on "emotional" topics.
Graham: If we are going to vote against a nominee because they won't tell us things that we want to hear, then the whole nominating process has become a joke.
Sen. Graham is discussing abortion, which he spent much of his questioning discussing yesterday. He is drafting a bill on the issue that would ban abortions at 20 weeks
[Graham is decrying the deterioration in the confirmation process, from when Scalia and Ginsburg were confirmed with 98 and 96 votes, to today . . . . ]
Hello from across the street at the court. The justices just unanimously ruled in Endrew F. v. Douglas County School District, rejecting the 10th Circuit's "merely more than de minims" standard for progress by a student with a disability under the federal special education law.
This is a rejection of that same standard enunciated by Gorsuch in another case that is getting a lot of attention during the hearings, Thompson School District v. Luke P. The opinion is by Chief Justice Roberts.
Alexander Hamilton would be rolling over in his grave based on the state of the confirmation process, says Graham. (Reference #1!)
Let's talk about Griswold v. Connecticut, says Graham. Asks Gorsuch to state holding.
Graham: Is it a longstanding precedent?
Gorsuch: Yes, over 50 years. Also look at reliance interests, whether it has been reaffirmed, etc.
[We had this same discussion yesterday. Near verbatim.]
Graham: Are you an originalist?
Gorsuch: I do worry about the use of labels.
[So far we are not covering a lot of new ground here with Graham.]
[On the other hand, sadly, no discussion of mutton busting or fishing streams.]
Graham: The way you judge has been viewed by people above you as being acceptable. To my friends on the other side, what more can you ask for?
Graham: Gorsuch is not going to make your political life easier. Adds that I haven't voted for a president who won in 12 years! [Laughter.]
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