- The Washington Times - Wednesday, March 22, 2017

Democrats sought to erect hurdles Wednesday in Judge Neil Gorsuch’s path to the Supreme Court, saying a new ruling from the high court dents his claims of being in the legal mainstream.

But the third day of hearings ended without any major stumbles from the judge, who again batted away attempts to get him to weigh in on thorny legal controversies or reveal his personal opinion on issues such as abortion or same-sex marriage.

Republicans said Judge Gorsuch was making a clear case for confirmation, and they’ve scheduled votes early next month, hoping to have him on the high court by Easter.

Democrats, meanwhile, prodded the judge to explain his fealty to “originalism,” a judicial philosophy also practiced by the late Justice Antonin Scalia, and questioned whether he was too closely tied to the Republican Party.

The latest line of attack came thanks to a new Supreme Court ruling Wednesday morning dealing with the Individuals With Disabilities Education Act (IDEA).

The justices ruled 8-0 that public schools could potentially be held responsible for paying for a disabled student’s private school education if the public schools’ program is inadequate. The ruling rejected the legal test that Judge Gorsuch had used in his own 2008 ruling on a separate case.

Though the case before the Supreme Court stemmed from a different circuit, Democrats said it amounted to a rejection of his legal reasoning. They said that dented his claim that he’s only been overturned, at most, once.

Judge Gorsuch, though, said a number of other courts ruled the same way he did, and he said his ruling was in line with a previous case in his circuit.”I was wrong, senator, because I was bound by circuit precedent, and I’m sorry,” he said.

“Anyone who is suggesting that I like a result where an autistic child happens to lose — it’s a heartbreaking accusation,” the judge said.

Democrats also tried to link Judge Gorsuch to the Republican Party and billionaire donor Philip F. Anschutz, a major donor to the conservative groups who helped President Trump with his list of potential Supreme Court nominees. As a young lawyer in Washington, D.C., Judge Gorsuch also had Mr. Anschutz as a client.

Sen. Patrick J. Leahy, Vermont Democrat, asked the judge if he would recuse himself from cases involving the conservative billionaire.

“He is a former client, and I treated him as I treated my former clients, large and small,” said Judge Gorsuch. “I’d have to look at the recusal standards that apply to Supreme Court justices.”

Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee, said the judge’s originalist approach to interpreting the Constitution worries her, and wondered whether it meant women and homosexuals would not have equal protection under the 14th Amendment, since that wasn’t the original intent when it was drafted.

Judge Gorsuch has been labeled an “originalist” — a judicial philosophy that says the founding document should be imbued with the meaning intended by those who wrote it.

The opposing philosophy of a “living Constitution” holds sway among liberal lawmakers who say judges should take the Constitution’s principles and apply them as the judges see appropriate for modern times.”No one is looking to return us to horse-and-buggy days. We’re trying to interpret the law faithfully,” Judge Gorsuch said.

Democrats complained to the judge that he hasn’t been transparent in his answers, and was avoiding any specificity.

“For us on this side, knowing where you stand on major questions of the day is really important to vote aye, and so that’s why we press and press,” Mrs. Feinstein said.

On Thursday, the fourth day of Judge Gorsuch’s confirmation hearing, witnesses — both for and against his confirmation — will appear before the committee to testify about his record.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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