Dems likely to probe Gorsuch environmental views this week

By Amanda Reilly | 03/20/2017 06:59 AM EDT

Supreme Court nominee Neil Gorsuch will face lawmakers during confirmation hearings this week.

Supreme Court nominee Neil Gorsuch will face lawmakers during confirmation hearings this week. Photo by Andrew Harnik, courtesy of AP.

The Senate Judiciary Committee today kicks off a multiday hearing on President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court.

Environment and energy issues likely won’t be the focus of the hearing, which will begin today with opening statements and continue until at least Thursday with questioning from lawmakers and testimony by outside witnesses.

But Democratic senators may give such issues more play than in prior Supreme Court confirmation hearings, court watchers said, given the Trump administration’s plan to undo a host of Obama-era regulations.


"These issues will come up in various contexts," said Glenn Sugameli, an environmental attorney who tracks judicial appointments for the website Judging the Environment.

One context where they could arise: Gorsuch’s views on the Chevron doctrine, a legal principle that’s key to environmental law. Senators may also use the hearing and follow-up written questions as an opportunity to grill Gorsuch on his views on legal standing and constitutional issues that affect environmental cases.

Overall, the nomination has flown somewhat below the radar after Trump announced it on Jan. 31. In recent weeks, Congress has been consumed by other confirmation battles, health care reform, and controversies over Trump’s travel ban and Russian meddling in the U.S. election.

That perhaps prompted liberal groups earlier this month to write a letter to Senate Democrats to "do better" on Gorsuch (E&E Daily, March 7).

This week’s hearing in front of a polarized committee could shift the attention back to Gorsuch, said Ed Pagano, a partner at Akin Gump who previously worked in the Obama administration as the president’s liaison to the Senate.

"I think there’s limited oxygen, and it just seems like, for the Supreme Court, this has not gotten as much attention as other Supreme Court nominations get," Pagano said. "It’s been a sleeper so far. Is it going to stay a sleeper after the hearings or not?"

Trump nominated Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals and the son of late Reagan-era U.S. EPA chief Anne Gorsuch Burford, for the seat left vacant when Justice Antonin Scalia died in February 2016.

Major environmental groups, including Earthjustice, the Sierra Club and Defenders of Wildlife, oppose the nomination. Pat Gallagher, director of the Sierra Club’s Environmental Law Program, is scheduled to testify at this week’s hearing.

As a judge, Gorsuch’s record on the environment and energy is relatively light and mixed. Much like the late Scalia, it’s driven by a textualist and originalist reading of the law.

It’s a concurring opinion that Gorsuch wrote last August in a case involving immigrants living in the country illegally that has garnered the most attention and debate in environmental law circles.

In the 23-page opinion, Gorsuch gave a scathing critique of the Chevron doctrine, under which courts give deference to federal agencies when Congress has been silent or ambiguous on a subject.

The doctrine is named after the 1984 Supreme Court decision in Chevron USA Inc. v. Natural Resources Defense Council. Federal agencies often win environmental cases by citing the doctrine.

Gorsuch called Chevron a "judge-made doctrine for the abdication of judicial duty" and a "goliath of modern administrative law" that’s "more than a little difficult to square" with the Founding Fathers’ intentions (Greenwire, Feb. 1).

Democratic senators may raise concerns that Gorsuch’s views on Chevron — which differ from Scalia’s defense of the doctrine — may translate to second-guessing agency expertise or attempting to reverse settled law (E&E Daily, Feb. 2).

"That issue will come up, and that’s a very important issue for environmental and a whole range of laws," Sugameli said.

Jonathan Adler, a law professor at Case Western Reserve University, also said that Gorsuch’s views on Chevron would likely play a role in the hearing, but he disagreed on how significant they are.

Courts will continue to defer to legitimate agency expertise regardless of whether Gorsuch is confirmed, he said.

"It’s easy to caricature and not really to grapple with it," Adler said of Gorsuch’s concurring opinion. "And so I’ll be curious whether or not we have an illuminating discussion of Chevron and his concerns with it."

Gorsuch’s views on legal standing — or whether parties have sufficiently demonstrated harm to bring cases in front of the courts — may also come up throughout the week.

Environmentalists have raised alarm about a few cases in the 10th Circuit in which Gorsuch has ruled against green groups on standing and intervention. That includes a 2013 case in which Gorsuch dissented from his colleagues over whether to allow environmental groups to intervene in a lawsuit over off-highway vehicles in the Santa Fe National Forest.

Gorsuch wrote that the groups were adequately represented by the Forest Service (Greenwire, Feb. 7).

It’s unclear whether climate change will come up this week, but liberal Democrats such as Sen. Sheldon Whitehouse of Rhode Island have raised the issue at other confirmation hearings for Trump Justice Department positions.

Gorsuch could play a role deciding the fate of Obama administration climate initiatives or in challenges to the Trump administration’s efforts to roll back policies.

Whitehouse’s office did not respond to a request Friday on whether the senator plans to ask about the issue.

‘He prefers CEOs over truck drivers’

Over the last week, Democrats vowed to focus questions on money in politics and Gorsuch’s rulings in favor of big corporations (E&E Daily, March 15).

"Democrats are going to focus on how fair he will be, in their view, on all litigants in the courtroom," Pagano said. "Does he have a natural tendency to side with corporations, with the powerful, versus working-class folks?"

Gorsuch joined the 10th Circuit majority decision in the well-known Hobby Lobby case, which was affirmed by the Supreme Court, that found corporations didn’t need to provide contraceptive coverage as part of health insurance plans.

At a press conference last Wednesday, Senate Majority Leader Chuck Schumer (D-N.Y.) highlighted a case in which Gorsuch dissented from the majority and sided with an employer in a case over a truck driver’s firing for leaving his rig unattended in unsafe subzero temperatures.

"His record shows he prefers CEOs over truck drivers, executives over employees and corporations over consumers," Schumer said.

Republicans last week said that Democrats would seek to mischaracterize Gorsuch’s record at the confirmation hearing.

"Democrats and their liberal allies strain mightily to find plausible grounds to oppose his nomination," Sen. Orrin Hatch (R-Utah), a senior member of the Judiciary Committee, said in an editorial in USA Today. "They misread his opinions, misstate his reasoning and in general paint a picture of a man who simply does not exist."

Conservative groups that support the nominee and the White House will likely be watching how Democrats who are up for re-election in states that Trump won in November respond to Gorsuch at the hearing and during floor debate on his nomination. Four Democrats who are up for re-election in 2018 sit on Judiciary — ranking member Dianne Feinstein of California and Sens. Mazie Hirono of Hawaii, Amy Klobuchar of Minnesota and Whitehouse — though none is considered particularly vulnerable at the moment.

Senate Majority Leader Mitch McConnell (R-Ky.) aims to hold a full Senate vote on the nomination before the Easter recess.

Some liberal Democrats such as Sen. Jeff Merkley of Oregon who are still angry about Senate Republicans’ refusal to hold a hearing on Merrick Garland, President Obama’s nominee to replace Scalia, have called for filibustering the nomination.

But that could push McConnell to change the rules to allow the nomination to move by a simple majority instead of a 60-vote threshold.

Former Senate Minority Leader Harry Reid (D-Nev.) in 2013 invoked the so-called nuclear option to lower the threshold for advancing executive branch and judicial nominees.

"We can’t prevent Judge Gorsuch from having a hearing. That is going to go forward," Whitehouse said last week. "The question is, then, if Judge Gorsuch doesn’t distinguish himself in the hearing, is Sen. McConnell willing to pull the nuclear option and blow up the cloture rule with respect to the Supreme Court nominees?"

"We’ll have to see."

Schedule: The hearing begins today, March 20, at 11 a.m. in 216 Hart.

Witnesses: Judge Neil Gorsuch, President Trump’s nominee for Supreme Court justice. He’ll be introduced by Sens. Michael Bennet (D-Colo.) and Cory Gardner (R-Colo.) and Neal Katyal, former acting solicitor general.

Second panel: Nancy Scott Degan of New Orleans, American Bar Association Standing Committee on the Federal Judiciary; and Shannon Edwards of Edmond, Okla., American Bar Association Standing Committee on the Federal Judiciary.

Third panel — testifying for the majority: Deanell Reece Tacha, retired U.S. Court of Appeals judge, former Duane and Kelly Roberts dean and professor of law, Pepperdine Law School; Robert Harlan Henry, retired U.S. Court of Appeals judge, president, Oklahoma City University; John Kane; senior U.S. District Court judge, District of Colorado; and Leah Bressack, former law clerk.

Third panel — testifying for the minority: Elisa Massimino, president and CEO, Human Rights First; Jameel Jaffer, executive director, Knight First Amendment Institute, Columbia University; Jeff Perkins, Berthoud, Colo.; and Guerino Calemine III, general counsel, Communications Workers of America.

Fourth panel — testifying for the majority: Jeff Lamken, partner, MoloLamken LLP; Lawrence Solum, Carmack Waterhouse professor of law, Georgetown University Law Center; Jonathan Turley, J.B. and Maurice C. Shapiro professor of public interest law, George Washington University Law School; and Karen Harned, executive director, National Federation of Independent Business Small Business Legal Center.

Fourth panel — testifying for the minority: Heather McGhee, president, Demos; Fatima Goss Graves, senior vice president for program and president-elect, National Women’s Law Center; Pat Gallagher, director, Environmental Law Program, Sierra Club; and Eve Hill, partner, Demos.

Fifth panel — testifying for the majority: Peter Kirsanow, commissioner, U.S. Commission on Civil Rights and partner, Benesch, Friedlander, Coplan & Aronoff; Alice Fisher, partner, Latham & Watkins; Hannah Smith, senior counsel, Becket; Tim Meyer, former law clerk; and Jamil Jaffer, former law clerk.

Fifth panel — testifying for the minority: Kristen Clarke, president and CEO, Lawyers Committee for Civil Rights Under Law; Sarah Warbelow, legal director, Human Rights Campaign; Amy Hagstrom Miller, founder, president and CEO, Whole Woman’s Health; William Marshall, William Rand Kenan Jr. distinguished professor of law, University of North Carolina; and Sandy Phillips, Boerne, Texas.