Anger Over Gorsuch Ruling Spills Into Nominations Hearing

Senate Republicans wasted no time grilling Trump judicial nominees on their approach to “textualism"—the legal theory championed by the late Justice Antonin Scalia—after being stung by Justice Neil Gorsuch’s application of the principle to protect LGBTQ workers from discrimination.

Republican Sens. Josh Hawley of Missouri and John Kennedy of Louisiana sought answers on Wednesday from district court nominees at a Judiciary Committee confirmation hearing about their views on textualism, or how closely they’d hew to the plain reading of a federal statute rather than the intent behind it.

“In light of recent Supreme Court activities, it is very important for me at least and I think for this committee to understand how you approach the text of statutes,” Hawley said.

Gorsuch, President Donald Trump’s first Supreme Court appointment, jolted conservatives June 15 in not only joining with liberals but authoring the majority opinion in Bostock v. Clayton County. The 6-3 decision ruled that federal law protects gay and transgender workers from job discrimination, giving millions of LGBTQ people civil rights they had sought for decades.

The case turned on the question of whether the term “sex” in anti-discrimination law protects LGBTQ workers. In finding that the law does prohibit discrimination against them, Gorsuch wrote that the answer was “clear” and “unambiguous.”

His reading drew a sharp rebuke from conservatives who say he misapplied textualism as a tool in this case.

Hawley and Kennedy’s questioning could indicate even closer scrutiny of judicial nominees going forward on bedrock conservative views.

The two senators pressed Greenberg Gross partner John W. Holcomb and Jones Day partner R. Shireen Matthews on how they would interpret statutes and what role original meaning would have in their decision-making.

Holcomb and Matthews are nominated to the Los Angeles-based Central District of California and San Diego-based Southern District of California, respectively.

“What if the words have changed over time? What if we use the word sex in one way in 1964 and we use sex in another way in 2020? Which interpretation controls?” Kennedy asked Holcomb, referring to both textualism and orginialism, methods of statutory and constitutional interpretation often preferred by conservative jurists.

“Senator, you’re obviously referring to the Bostock decision that came out just a couple days ago,” Holcomb said, adding it would be inappropriate for him to comment on it.

“Don’t dodge my question,” Kennedy said.

Hawley similarly pressed Matthews on how she would to get to the common ordinary meaning of a statute when she said she would start by analyzing the plain text.

“A word might seem quite plain to you. It might have a particular meaning in 2020 that it didn’t in 1980 or 1964, for instance. So which one do you use?” Hawley asked.

The committee heard from five of Trump’s district court picks, three of whom are from California. Despite the attention from Hawley and Kennedy, the nominees sailed through questions from other senators.

The others on Wednesday were federal prosecutor Todd Wallace Robinson, nominated to the San Diego-based Southern District of California; U.S. bankruptcy judge Brett Ludwig, nominated to the Eastern District of Wisconsin; and federal prosecutor Christy Criswell Wiegand, nominated to the Western District of Pennsylvania.

California Backlog
The California picks face a logjam of other nominees from the state who are stuck in the confirmation pipeline. While Trump and Senate Majority Leader Mitch McConnell (R-Ky.) have worked to advance conservative judicial nominees across the U.S., the Senate hasn’t yet confirmed one from California, which is represented by two Democrats in the chamber.

But McConnell has said that his motto is “leave no vacancy behind” with Trump up for re-election and Democrats aiming to flip the Senate majority in November.

Trump is close to filling all of the current appellate vacancies, with confirmation votes for Justin Walker and Cory Wilson to the U.S. Court of Appeals for the District of Colombia Circuit and the Fifth Circuit, respectively, coming soon. There are dozens of trial court nominees in the pipeline as well, and he continues to add nominees.

On June 15, Trump announced plans to nominate commercial litigation lawyer Taylor B. McNeel to the Southern District of Mississippi. Trump also recently announced that California state judge James Patrick Arguelles, a former Gibson, Dunn & Crutcher attorney, is his pick to serve on the Eastern District of California.

With assistance from Greg Stohr (Bloomberg) and Kimberly Robinson (Bloomberg Law).