Franken vs. Gorsuch: Do You Think Merrick Garland Was Treated Fairly? Don't You Think It Was Absurd?

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Supreme Court Justice nominee Neil Gorsuch tells Sen. Al Franken (D-Minn.) he believes Garland is an outstanding judge but it would be inappropriate of him to give a political opinion.

"Don't you think it was absurd that this man was fired?" Franken asked.

"My heart goes out to him," Gorsuch said.

FRANKEN: But the plain meaning rule has an exception. When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That's absurd.

Now, I had a career in identifying absurdity.

(LAUGHTER)

And I know it when I see it. And it makes me, you know, the -- it makes me question your judgment. You stopped by my office a few weeks ago. I asked you about Merrick Garland. I had read somewhere that after you accepted the nominations, we talked about it, one of the first calls you -- calls you placed was to Chief Judge Garland.

And you said to me, "I think the world of Merritt Garland." And I asked you a couple of times if you were bothered by the way the Senate treated Merrick Garland, who you clearly have a great deal of respect for.

You said something to the effect of, "Senator, I try to stay away from politics." Now, you'd been on the bench for 10 years, so that sounded fair to me, and I decided to leave well enough alone and we moved on to another topic.

But your relationship with politics came up again yesterday. My good colleague Senator Lee lamented the extent to which the confirmation process has become political, and suggested that you and other nominees are not equipped to navigate that process because confirmation politics are, in his words, quote, "still a little foreign to you; are still quite unfamiliar to you."

But it turns out that's not really entirely accurate. After you were nominated, this committee made a formal request for documents relating to your previous nomination and to your time at the Department of Justice. This is standard procedure. Those documents include e-mails back and forth between former Bush administration officials and you in 2004, back before you joined that administration. And the Neil Gorsuch in those e-mails seems to be very, very familiar with politics.

The Neil Gorsuch in those e-mails was looking for a job. Here is a message you sent to Matt Schlapp, President Bush's political director. This was in November, 2004, just after President Bush won re-election. Quote, "I spent some time in Ohio working on the election" this is you. "What a magnificent result for the country. For me personally the experience was invigorating and a great deal of fun." That doesn't sound like someone who steers clear of politics to me.

You went on to write, quote "while I've spent considerable time trying to help the cause on a volunteer basis in various roles, I have concluded that I'd like to be a full-time member of the team." You attach your resume which describes in detail your work in support of political campaigns and candidates. Basically you had worked on republican political campaigns since 1976.

You had worked for Reagan. Bush 1, Bush 2, you were cited for distinguished service to the United States Senate for work in support of President Bush's judicial nominees by the senate republican conference, which suggests that even the political aspects of confirming judicial nominees is something that you are not unfamiliar with. Now, when we met earlier, I asked you what you thought of the way Senate republicans treated Merrick Garland, and rather than answer the question you replied "I try to avoid politics."

But here you are in 2004 pledging your allegiance to the cause and shopping around a resume touting your work on political campaigns dating back to 1976. These messages establish that, for a good deal of your prior career, you didn't avoid politics. Quite the contrary. You were very politically active. So in light of that, I'd like task my question again, do you think Merrick Garland was treated fairly by the United States Senate?

GORSUCH: Senator, a couple of things in response to that, if I might. Going back, the absurdity doctrine argument was never presented to the court. And it usually applies in cases where there is a scrivener's error, not where we just disagree with the policy of the statute. So I'd appreciate the opportunity to respond there.

FRANKEN: When there is a scrivener there.

GORSUCH: Scrivener's error.

FRANKEN: Error. Okay. I'm sorry.

GORSUCH: Not when we just disagree with the policy. With respect to...

FRANKEN: Well, if I read my statutory interpretation from -- let's see. This is from the Notre Dame Law School National Institute for Trial Advocacy. This is a pretty well known exception to the plain meaning rule. te

GORSUCH: Oh, yeah.

FRANKEN: And I think you can apply it without it. I mean don't you think it is absurd that this man was put -- given that choice and then fired for it? Don't you think that was absurd?

GORSUCH: Senator, my heart goes out to him.

FRANKEN: Okay, never mind.

GORSUCH: My heart goes out to him. it's just not my job --

FRANKEN: How do you think Merrick Garland was treated by the Republican senators?

GORSUCH: Senator, since I became a judge ten years ago, I have a canon of ethics that precludes me from getting involved in any way, shape or form in politics. The reason why judges don't clap at the state of the union and why I can't even attend a political caucus in my home state to register a vote in the equivalent of a primary.


Gorsuch: I am my own man:


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