KELLY MCEVERS, HOST:
Supreme Court nominee Neil Gorsuch moved one step closer to confirmation today while frustrated Democrats tried without success to postpone the vote. It was Gorsuch's second day before the Senate Judiciary Committee. Again, he deflected the most substantive questions on grounds that related issues might someday come before the court. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The second day of Gorsuch testimony found the Democrats both stymied and more personal in their questioning. Senator Dianne Feinstein recalled the days when abortion was illegal and she had to sentence women to prison under the state's anti-abortion statutes. And then she turned to another question about life, discussing a book Gorsuch wrote about assisted suicide. Both Feinstein and the nominee grew emotional.
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DIANNE FEINSTEIN: I in my life have seen people die horrible deaths - family, of cancer - when there was no hope, and my father begging me, stop this, Dianne, I'm dying.
NEIL GORSUCH: I agree with the Supreme Court and the Cruzan decision that refusing treatment - your father. We've all been through it with family. My heart goes out to you. It does.
FEINSTEIN: Yeah, well...
GORSUCH: And I've been there with my dad. And I've been there. I have been there.
TOTENBERG: The judge stressed that he wrote the book before becoming a judge and that the views in it are personal, not legal. The discussion turned more political again when Republican Lindsey Graham noted that he had voted for President Obama's Supreme Court nominees.
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LINDSEY GRAHAM: He had a right to pick somebody from the progressive wing of the law. I expected him to do so and he did - twice. I knew full well what I was getting. And I hope you understand that you're getting one of the most qualified conservative judges in the country.
TOTENBERG: That prompted this pointed observation from Democrat Patrick Leahy.
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PATRICK LEAHY: I think the records show President Obama nominated three Supreme Court justices, one of whom was Merrick Garland.
TOTENBERG: The morning took a somewhat dramatic turn when Senator Richard Durbin asked about an opinion Gorsuch wrote declaring that federal law guarantees children with disabilities an education that is, quote, "merely more than de minimis." But even as Gorsuch was testifying in defense of that decision, the U.S. Supreme Court across the street from the Capitol handed down a unanimous decision reversing that position.
Writing for the court, Chief Justice John Roberts said a student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all.
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GORSUCH: I was wrong, Senator. I was wrong because I was bound by circuit precedent. And I'm sorry. I'm going to try to apply the law. And I can tell you that we were doing it unanimously in all of those cases.
TOTENBERG: As the day wore on, the Democrats' frustration was evident. Here, for instance, is Senator Al Franken.
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AL FRANKEN: This is really about something. And my colleagues on the other side say that we're making something up over here. We're trying to really figure out whether we're going to see a continuation of this pro-corporate bias and of this bias toward big money and a perversion of our political system like through Citizens United.
TOTENBERG: Citizens United was the Supreme Court's 5-4 decision striking down most of the laws regulating campaign money raising and spending. On a wide variety of subjects, Gorsuch told the senators today that if they don't like the Supreme Court's decisions, there's always room to enact changes to the law. That prompted this exchange with Senator Sheldon Whitehouse.
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SHELDON WHITEHOUSE: You said earlier that sometimes - I think I'm quoting you correctly - sometimes big corporations can capture an agency. That's a well-known principle of administrative law and of economics. Just let's be sure that our Supreme Court doesn't get to be one of those agencies that's captured on any subject.
GORSUCH: Nobody will capture me.
WHITEHOUSE: I hope not.
TOTENBERG: The hearings continue tomorrow with testimony from groups and individuals for and against the Gorsuch nomination. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
