Pro-abort Senator grills Gorsuch on whether Roe v Wade is ‘super precedent’

WATCH: Pro-abort Senator grills Gorsuch on whether Roe v Wade is ‘super precedent’

[Was his “yes” a “yes” or a “no”?]

WASHINGTON, D.C., March 21, 2017 (LifeSiteNews) – Supreme Court nominee Neil Gorsuch refused to label Roe v. Wade “super precedent” today as Sen. Dianne Feinstein, D-CA, attempted to grill him on abortion.

Throughout day two of his confirmation hearing, Gorsuch repeatedly refused to make “campaign promises” about which cases he would support and which he wouldn’t, saying judges shouldn’t be like politicians. He indicated there are a number of factors that go into analyzing precedent.

“Do you view Roe has having super precedent?” asked Feinstein.

Roe v. Wade “has been reaffirmed many times. I can say that, yes,” said Gorsuch.

Earlier in the hearing, he said of Roe v. Wade, “A good judge will consider it as precedent of the United States Supreme Court worthy as treatment of precedent like any other.”

Conservatives on Twitter pointed out that “super precedent” isn’t a real legal term – and precedents have been unjust before.

Hugh Hewitt ✔ @hughhewitt
“Super-precedent” is not tested on Bar Exams because it doesn’t exist outside of senators’ minds
11:35 AM – 20 Mar 2017

Andrew Mullins ✔ @AndrewWMullins
By Diane Feinstein’s logic, Dred Scott would have been a super-precedent, just like Roe.
Precedent is fallible.
10:18 AM – 21 Mar 2017

T. Kyle Bryant @TKyle
What I want to know is how the Constitution can be malleable and yet Roe be “super-precedent,” an inviolable and un-changeable principle.
10:13 AM – 21 Mar 2017

Senator TJ Henderson @AltTexasSenator
W/all due respect @SenFeinstein there’s no such thing as “super precedent.” You can trust me on this; I used to be a judge #GorsuchHearing
10:13 AM – 21 Mar 2017

Feinstein suggested on Monday that Gorsuch shouldn’t be confirmed because of his belief that “the intentional taking of a human life by private persons is always wrong.”

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7 comments on “Pro-abort Senator grills Gorsuch on whether Roe v Wade is ‘super precedent’

  1. [More from LifeNews]

    Judge Neil Gorsuch Refuses to Say Roe v. Wade Case for Unlimited Abortions is “Super Precedent”

    STEVEN ERTELT MAR 21, 2017

    Judge Neil Gorsuch today refused to go along with an assumption by pro-abortion Senator Dianne Feinstein that the Roe versus Wade abortion case is “super precedent.”

    Feinstein attempted to trap the appeals court judge into agreeing that the infamous Roe case and its decision allowing unlimited abortions is a “super precedent” that cannot be overturned. Gorsuch did not take the bait and left himself room to overturn the pro-abortion decision should he be affirmed for the Supreme Court.

    Do you view Roe as “super precedent?” Feinstein asked.

    Gorsuch merely said: “It has been reaffirmed many times, I can say that, yes.”

    Feinstein, attempted to assert her position, replied: “Dozens.”

    Yesterday, Feinstein slammed the potential High Court pick.

    Feinstein drew on the issue of abortion for her criticism — saying that she probably will oppose Gorsuch because he believes “the intentional taking of a human life by private persons is always wrong.”

    “President Trump repeatedly promised that his judicial nominees would be pro-life, and automatically overturn Roe v. Wade,” she said. “Judge Gorsuch has not had occasion to rule directly on a case involving Roe. However, his writings do raise questions. Specifically, he wrote that he believes there are no exceptions to the principle that ‘the intentional taking of a human life by private persons is always wrong.’ This language has been interpreted by both pro-life and pro-choice organizations to mean he would overturn Roe.”

    “President Trump repeatedly promised to appoint someone in the mold of Justice Scalia and said that the nomination of Judge Gorsuch illustrates he’s a man of his word,” said Feinstein. “The Supreme Court has the final say on whether a woman will continue to have control over her own body or whether decisions about her healthcare will be determined by politicians and the government.”

    Feinstein then described a 21-week abortion as the kind of abortion at stake if Gorsuch’s nomination is confirmed.

    Brian Burch of CatholicVote responded to the attacks.

    “Already, Democratic Senators are on the attack. They understand the historic nature of this nomination. Left-wing groups have used the courts and reckless judicial decisions to impose their agenda on the people. But that could all end soon,” he said. “Judge Gorsuch has pledged to obey the Constitution and to respect the limited role of judges. Judges are not policy makers. Judges are not politicians. And when the Supreme Court restrains itself, the Left typically loses.”

    “Today, Senators presented their opening statements. Tomorrow, the real fireworks begin with 30-minute Q & A exchanges between Judge Gorsuch and individual Senators on the Judiciary Committee — for 10 hours not counting breaks,” he added.

    President Donald Trump nominated the federal appeals Court Judge with strong support from pro-life organizations that point to his track record as supporting religious freedom for pro-life organizations refusing to be forced to pay for abortions. They also noted his opposition to assisted suicide and his support for a state fighting to defund Planned Parenthood abortion business.

    The Planned Parenthood abortion business was also quick to blast Judge Gorsuch as well.

    The abortion giant slammed Gorsuch for supporting Hobby Lobby and the Little Sisters of the Poor in their bids to not be forced to pay for abortion-causing drugs in their employee health care plans.

    “Gorsuch has also worked to undermine access to essential health care — ruling that bosses should be able to deny women birth control coverage. His record shows a disturbing willingness to let ideology overrule his constitutional duty to uphold and respect clearly established precedent protecting our fundamental liberties, including Roe v. Wade and Whole Woman’s Health,” Planned Parenthood said.

    The 49-year-old Judge Gorsuch, if confirmed, would replace pro-life Justice Antonin Scalia – who supporting overturning Roe v. Wade and allowing states to once again provide legal protection for unborn children.

    Justice Gorsuch is currently a judge of the United States Court of Appeals for the Tenth Circuit, which includes the districts of Colorado, Kansas, New Mexico, Utah and Wyoming, as well as the Eastern, Northern and Western districts of Oklahoma. He has served as a federal judge since August 2006 and was appointed by President George W. Bush and confirmed unanimously by the Senate.

    The pro-life legal scholars who know him best say he is a strong originalist, believing that the Constitution should only be interpreted as the Founding Fathers intended. That would him squarely in the legal camp of Justice Scalia.

    One of the biggest problems pro-life advocates have with the Supreme Court is that it invented a so-called right to abortion in Roe v. Wade. But Gorsuch’s writings indicate he opposes that kind of thinking. In a 2005 National Review article, Gorsuch wrote that liberals rely on the courts too much to made social policy.

    This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

    He said liberal activists rely on the judicial system “as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

    On direct pro-life matters, Gorsuch sided with the state of Utah in its attempt to defund the Planned Parenthood abortion business.

    Gorsuch sided with pro-life Utah Governor Gary Herbert’s effort to defund Planned Parenthood. After his decision, the 10th Circuit Court decided against re-hearing Planned Parenthood v. Gary Herbert, after the court previously ordered Utah to fund Planned Parenthood. Gorsch dissented in the case and wrote:

    Respectfully, this case warrants rehearing. As it stands, the panel opinion leaves litigants in preliminary injunction disputes reason to worry that this court will sometimes deny deference to district court factual findings; relax the burden of proof by favoring attenuated causal claims our precedent disfavors; and invoke arguments for reversal untested by the parties, unsupported by the record, and inconsistent with principles of comity. Preliminary injunction disputes like this one recur regularly and ensuring certainty in the rules governing them, and demonstrating that we will apply those rules consistently to all matters that come before us, is of exceptional importance to the law, litigants, lower courts, and future panels alike. I respectfully dissent.

    As National Review pro-life legal scholar Ed Whelan notes:

    I’d like to take note of his remarkable failure to acknowledge, much less credit Gorsuch for, Gorsuch’s powerful dissent (see pp. 16-27 here) one month ago from the Tenth Circuit’s denial of rehearing en banc in Planned Parenthood Association of Utah v. Herbert. As the faithful reader will recall from these posts of mine, in the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood’s Utah affiliate. But after the district court denied Planned Parenthood’s request for a preliminary injunction against Herbert’s directive, a divided panel, on very weak reasoning, ruled that Planned Parenthood was entitled to a preliminary injunction. Gorsuch’s dissent dismantles the panel majority’s reasoning.

    Would a Supreme Court Justice Gorsuch be inclined to overturn the decades-old decision fostering abortion on demand? His record suggests he is open to doing so.

    As one pro-life legal scholar notes:

    In the panel ruling in Games-Perez, Gorsuch did indeed regard himself as bound to abide by controlling circuit precedent, just as nearly every circuit judge not named Stephen Reinhardt also does. But Gorsuch didn’t stop there. In a 20-page opinion, he urged the en banc Tenth Circuit to reconsider and overrule the wrong precedent.

    Gorsuch also has made pro-life comments about abortion and strongly opposes assisted suicide. He has written a book, The Future of Assisted Suicide and Euthanasia, which (as Princeton University Press puts it) “builds a nuanced, novel, and powerful moral and legal argument against legalization [of assisted suicide and euthanasia], one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong.”

    Meanwhile, as National Review reports, “Gorsuch wrote a powerful dissent from the denial of rehearing en banc in a case involving funding of Planned Parenthood.” NR indicates Gorsuch has written “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”

    Democrats have already promised to filibuster any Supreme Court nominee.

    Sen. Jeff Merkle, a pro-abortion Oregon Democrat, said in an interview on Monday morning that he will filibuster any pick other than pro-abortion Judge Merrick garland — who pro-abortion president Barack Obama named to replace pro-life Justice Antonin Scalia.

    “This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said in an interview. “We will use every lever in our power to stop this.”

  2. “Do you believe that humans have an immortal soul which gives them the right to life?”

    Dr. Zaius: Yes, tell us, Bright Eyes, does this Catholic natural law give humans the right to life in ape law?

    “They just want you to promise to be a legal positivist.”

    How’s this for some natural law, Dr. Zaius? Blackstone, Aquinas, Aristotle, Cicero, English Common Law, and the U.S. Constitution say I have the right to defend myself.

  3. Whitehouse is trying to perform a guilt-by-association slam on Gorsuch and he won’t buy it. The Demos are losing this sham hearing by a landslide. Next, they’ll be demanding he recuse himself in advance of his confirmation.

  4. Even Scalia was not, absolutely, what many would like to believe when it came down to the Natural Law v. Modernist constitutional interpretations; at least as far as I could determine from numerous analyses. And, in fairness, Scalia was heir of a legacy long destroyed, going back as far as the day the Constitution was ratified.

    I am still grateful it isn’t a Hitlery nominee being grilled. How much else we can expect on cultural issues from this Administration remains an open question. I see nothing deserving of optimism.

    The Chief Justice had his chance to prevent Obamacare and blew it at the worst possible moment. I expect zip, zilch, nada from SCOTUS.

    The judicial and cultural void between Team Donald and the clear, truthful thoughts of a man like Pat Buchanan remains a vast chasm.

  5. Dr. Zaius: How do you feel about Roe v. Wade?

    Just tell them that humans are a meaningless product of evolution with no God-given rights and that you agree with the legal positivism pushed at Harvard.

  6. Mr. Potter: Well, Judge, it’s all over town that you’ve been giving money to Violet Bick.
    Aren’t you curious about where that money is coming from?

    Mr. Potter: How would you rule on a case where someone is giving money like that?

    Mr. Potter: Now if you’ll just rule to keep Roe v. Wade as the law of the land to trim the surplus population down…I’ll arrange for the votes of approval….

  7. What Gorsuch Said When a Democrat Asked Him About Roe v. Wade

    [Hat-tip to Canon212: “Gorsuch: Roe v. Wade is precedent, and good judges respect precedent?”]

    Rachel del Guidice / March 21, 2017

    Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, told senators during his second day of confirmation hearings Tuesday that he could not forecast how he would decide cases involving abortion.

    Sen. Dianne Feinstein, D-Calif., asked Gorsuch, “Do you view Roe as having superprecedent?”

    The Supreme Court’s 7-2 decision in Roe v. Wade on Jan. 22, 1973, legalized abortion across the nation.

    Gorsuch, testifying before the Senate Judiciary Committee, acknowledged that lower courts have defended the decision, but said he is not able to predetermine how he would rule in similar cases.

    “Well, Senator … [it is] a superprecedent,” he said to Feinstein. “It has been reaffirmed many times, I can say that.”

    Superprecedent, a term that originated in 1976, refers to a legal precedent “so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place, or, if they do arise, induces them to be settled without litigation,” according to the George Mason Law Review.

    Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee, earlier asked Gorsuch whether the Supreme Court correctly decided Roe v. Wade.

    Gorsuch replied that while judges should respect past precedent, that does not give him the freedom to project future decisions.

    “I would tell you that Roe v. Wade, decided in 1973, is precedent of the United States Supreme Court,” Gorsuch said. “It has been reaffirmed … So a good judge will consider as precedent of the United States Supreme Court worthy as treatment of precedent like any other.”

    Precedent is important, he said, because it “adds to the determinacy of law.”

    Hinting how he might judge, Gorsuch said, would be stripping his profession of its integrity:

    If it looks like I’m giving hints or previews or intimations about how I might rule, I think that is the beginning of the end of the independent judiciary. If judges have to make effectively campaign promises … Respectfully, Senator, I have not done that in this process, and I’m not about to start.

    Sen. Lindsey Graham, R-S.C., asked Gorsuch how he would have responded if Trump, in his interview of Gorsuch, had asked him to help overturn Roe v. Wade.

    “Senator, I would have walked out the door,” Gorsuch said.

    Gorsuch was expected to continue answering questions from the Judiciary Committee through Tuesday and Wednesday.

    Rachel del Guidice is a reporter for The Daily Signal. She is a graduate of Franciscan University of Steubenville, Forge Leadership Network, and The Heritage Foundation’s Young Leaders Program.

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