In advance of the public hearings ADL wrote to members of the Senate Judiciary Committee, encouraging the committee to carefully scrutinize Gorsuch’s record on key issues and prior court decisions. The following are ADL’s proposed questions on important issues such as civil rights, religious freedom, the First Amendment, voting rights, hate speech and myriad other issues that may come before the high court:
As an adherent of the original meaning approach to constitutional interpretation, you have stated that judges should apply the law “focusing backward, not forward,” and looking to history and text to decide how a person would have interpreted the Constitution at the time it was drafted. Do you still believe that the centuries-old meaning of words and phrases should control contemporary issues like a person’s medical choices, technology, and civil rights?
- What is your philosophy regarding stare decisis? Would you read precedent narrowly or broadly, and under what circumstances would you vote to overturn precedent with which you disagree?
- How do you define “judicial activism”?
First Amendment Religion Clauses
The Religion Clauses of the 1st Amendment are essential to maintaining church-state separation and protecting religious freedom for all. In past cases, you have defended religious displays on public grounds and have allowed religious beliefs to be used to harm others by, for instance, denying employees the complete healthcare they were owed. What is your view on the Court’s obligation when it comes to the separation of church and state and balancing religious freedom against the rights of others?
- What is your view on what constitutes religious coercion under the Constitution?
- To what extent is it appropriate for a religious display to be placed on public grounds?
- What is your view on the appropriateness of prayer at an official public event?
- What is your view of the inclusion of prayer at an official event involving students in a public school?
On Free Exercise Clause:
Under what circumstances can a person refuse to follow a law that violates their religious beliefs?
- What is the legal balance between the right to free exercise of one party and the constitutional rights of another? Should free exercise rights always prevail, even if such practice violates the rights of others?
- How do you foresee the decision in Hobby Lobby v. Sebelius affecting the rights of Jews and other religious minorities?
Federal Civil Rights
In 2015, the Court held that bans on same-sex marriage were unconstitutional. Many states and cities have passed laws to ensure that LGBT people are protected from discrimination, though some have gone in the opposite direction. In past cases, you have upheld discriminatory policies against transgender people, including finding the rationale of “safety reasons” sufficient for a public college to ban a trans woman from using the women’s restroom until she could prove she had completed sex reassignment surgery. What protections for LGBT people do you believe are provided in the Constitution and federal antidiscrimination statutes?
- Do you agree with the decision in Obergefell v. Hodges that the right to marry is a fundamental liberty?
- Is it your view that the Constitution protects against discrimination based on sexual orientation and gender identity?
- What is your interpretation of Title VII, as it relates to discrimination based on sexual orientation and gender identity?
- What is your interpretation of Title IX, as it relates to discrimination based on sexual orientation and gender identity?
- How do you foresee the decision in Hobby Lobby v. Sebelius affecting the rights of the LGBTQ community?
On voting rights:
- What is the role of Congress and the Judiciary in the context of interpreting the relevancy of the Voting Rights Act?
Was the Court correct in 2013 to substitute its views for Congress’s with regard to the Voting Rights Act?
- What is the role of the states in setting limitations on voting? Can it ever be appropriate to set limitations on voting that have the intent and/or the effect of disenfranchising minority voters?
On race-based decision making:
- What is your understanding of race-based decision making in the education context?
- Do you see a compelling state interest in diversity in education?
Since President Trump’s inauguration, he has signed executive orders restricting immigrants and refugees from predominantly Muslim nations that have been blocked by federal courts in part because they were motivated by the desire to disfavor Muslims. As with various past laws that have restricted civil liberties or expanded executive power, these executive orders were justified as matters of national security. What is your philosophy on how the Court should approach executive or legislative acts that are done in the name of national security?
What is your view on a state’s capacity to enact laws related to the citizenship and/or immigration status of persons within its jurisdiction?
- What is your view on the due process rights for undocumented persons under the Constitution?
- Is there an appropriate role for states to play in enforcing immigration laws?
- Can an exclusion of immigrants’ based on religion ever be constitutional or otherwise legally permissible?
- To what extent is it appropriate to consider statements made related to Administrative policy when determining the constitutionality of an Administrative action?
- What is your view on the role of the Executive, the Legislature, and the Judiciary in dealing with issues of national security?
As e-mails, text messages, and social networking sites have become the communities in which our nation’s students socialize, issues involving youth use of the internet have exploded. Cyberbullying has become increasingly prevalent over the past several years as students harass or bully their fellow students over e-mail, social media, and the internet.
What is your interpretation of the balance of a student’s free speech rights and a school’s obligation to provide a safe learning environment, particularly with concern to electronic expression?
Reproductive Rights/Right to Privacy
Reproductive rights are critical to ensure freedom and equality for women. States across the U.S., however, have passed laws making it more difficult for women to access abortions, imposing such invasive and burdensome restrictions as mandatory waiting periods, notarized parental consent for minors, and even requirements that the woman be told her fetus can feel pain. Would you disturb the settled law established by Roe v. Wade; and what do you consider to be an undue burden on the right to an abortion?
What importance do you place on the precedential value of Roe v. Wade? Do you think that case was properly decided?
- What is your view on the issue of a constitutional right to privacy, generally?
- Do you see the right to choose an abortion as a constitutional right? What are the limitations on governmental regulation of that right?
- What are your views on the balance between the right to privacy in the context of abortion and other reproductive health choices, and the right to free exercise?
ADL strongly believes that cities and states must retain latitude to keep guns out of the hands of extremists and domestic terrorists.
Do you agree with the interpretations of the majority in the Heller and McDonald decisions?
Do you agree that limitations set by the U.S. Supreme Court in these cases allow for reasonable gun regulations?