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What Senators Should Ask Neil Gorsuch

A microphone on the antique desk of a California State Senator. In the chambers of the California Senate in Sacramento.

February 24, 2017

In an effort to avoid the “Joe Biden problem,” as New Yorker legal analyst Jeffrey Toobin puts it, Senators should avoid rambling posturing and keep their questions for Supreme Court nominee Neil Gorsuch short and sweet. Toobin compiled a list of six questions Senators should ask, covering abortion rights, the right to privacy, whether money constitutes speech, the parameters of religious freedom, and whether visitors to the U.S. have the right to equal protection of the law. Toobin also suggests confronting Gorsuch with a question about Brown v. Board of Education as it relates to originalism, the Constitutional law philosophy that Gorsuch ascribes to, and which was the late Justice Antonin Scalia’s hallmark. “The Brown case, which is an unassailable touchstone of Supreme Court precedent, presents one of the toughest issues for originalists, because the decision was a clear departure from an originalist approach,” Toobin writes. “But, if it was appropriate to depart from the intent of the authors of the Fourteenth Amendment in Brown, doesn’t that open the door to other departures from originalist dogma?” Though Gorsuch will be well-trained to duck, evade, or pivot from some difficult questions during his nomination hearing, “the senators’ questions themselves serve as important public function, in reminding the public about the stakes and content of Supreme Court debates.”

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