Feinstein Asks Gorsuch If Originalism Means No Equal Protection for Women, Gays or Lesbians

By Susan Jones | March 22, 2017 | 11:26am EDT
Sen. Dianne Feinstein (D-Calif.), the ranking member of the Judiciary Committee, questions Judge Neil Gorsuch on women's rights at day two of his confirmation hearing on Wednesday, March 22, 2017. (Screen grab from C-SPAN)

(CNSNews.com) – Sen. Dianne Feinstein (D-Calif.), the ranking member of Judiciary Committee, championed women’s rights on Wednesday, as she questioned Judge Neil Gorsuch at his confirmation hearing.

She worried that his reliance on “originalism” would set women back, particularly when it comes to abortion.

“Do you agree with Justice Scalia's statements that originalism means there is no protection for women or gays and lesbians under the equal protection law because this was not the intent or understanding of those who drafted the 14th amendment in 1868?” Feinstein asked Gorsuch

"Senator, first of all, a good judge starts with precedent and doesn't reinvent the wheel,” Gorsuch responded. “So to the extent that there are decisions on those topics -- and there are -- a good judge respects precedent.

The second point I'd make is, it would a mistake to suggest that originalism turns on the secret intentions of the drafters…The point of originalism...what a good judge always strives to do, and I think we all do, is strive to understand what the words on the page mean.  Not to import words that come from us, but apply what you, the people's representatives, the lawmakers, have done.

And so when it comes to equal protection of the laws, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were. Or sexists, because they were.

The law they drafted promises equal protection of the laws to all persons. That's what they wrote. And the original meaning of those words -- John Marshall Harlan captured in his dissent in Plessy. And equal protection of the laws does not mean separate in advancing one particular race or gender. It means equal.

Gorsuch noted that it took a civil war for the country to win what might be the most "radical guarantee in all of the Constitution and maybe in all of human history” – equal protection under the law.

Feinstein, drawing on her personal experience as a young trial judge, noted that she has sentenced women to state prison in California for “committing abortion.”

"And I know what life was like,” Feinstein said. “You have two daughters. I am one of three daughters. And I know what life was like.” She mentioned pregnant women who have killed themselves, or gone to Mexico for abortions, or had catastrophically deformed babies when abortion wasn't available.

“So, the law has finally progressed that we now have the right to vote. That took a long time,” Feinstein said. “We are still fighting for equal pay for equal work. And it goes on and on. And as women take their place in the workplace, in society -- we could have had a women as president, perhaps -- life changes.”

Feinstein said to her, originalism brings people backward, not forward, especially for women who were not considered equal to men in the old days.

The senator told Gorsuch she wants his daughters to "have every opportunity they possibly could have to be treated equal -- be able to control their own bodies in concert with their religion, their doctor, whatever it may be, and not be conscribed to a lesser fate, because the law is interpreted in a backward sense.”

“Senator, I understand your concern, and I share it. I come from a family of strong women."  Gorsuch said, adding that he wants his daughters to have every opportunity a young man has.

Feinstein interrupted, telling Gorsuch, "You are pivotal in this.”

Gorsuch said he is "daunted" by that, but "no one is looking to return us to horse and buggy days,” he said. “We're trying to interpret the law faithfully, taking principles that are enduring in a Constitution that was meant to last ages and apply it and interpret it to today's problems -- to today's problems.”

Feinstein said she's' been through six Supreme Court confirmation hearings. "So how does one look at you, and we've talked about precedent. For the life of me, I really don't know, when you're there (on the Supreme Court), what you're going to do with it. And as you say, this isn't text. This is life. And young women take everything for granted today. And all of that could be struck out with one decision.”

Gorsuch responded, "Senator, I can't promise how I'd rule in a particular case. That would be deeply wrong to sit here at a confirmation table, and I think we agree on that, that it would be a violation of the independent judiciary for a nominee to a court to make a promise on any case in order to win confirmation."

He continued: "All I can promise you is that I will exercise the care and consideration due precedent that a good judge is supposed to. And I've written a book on it. This is not something that is just words in a room. This is years of toil, putting together a mainstream consensus view of what precedent is -- the law on it -- with 12 other judges appointed by presidents from both sides."

"I care about the law...and an independent judiciary and following the rules of the law."

Feinstein said what worries her is Gorsuch's ability to "avoid specificity, like no one I have ever seen before. And maybe that's a virtue -- I don’t know.  But for us on this side, knowing where you stand on major questions of the day is really important to vote ‘aye.’ So, that's why we press and press and press."

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