On Monday, Sen. Al Franken (D-Minn.) expressed concerns Judge Neil Gorsuch is insufficiently committed to protecting federal bureaucratic power from President Donald Trump and White House Chief Strategist Stephen K. Bannon.
The Supreme Court, said Franken, must protect federal regulatory agencies' powers – drawn via extra-constitutional congressional delegation – from the Trump administration's stated commitment to "deconstruction of the administrative state."
Judges must defer to relevant regulatory expertise supposedly possessed by technocrats, said Franken.
Gorsuch, continued Franken, seemed insufficiently committed to empowering the federal bureaucracy's production and enforcement of its own regulations:
"One of the ways in which your views are distinct from Justice Scalia’s is in the area of administrative law. Just this past August, you wrote an opinion in which you suggested that it may be time to reevaluate what is known as the Chevron doctrine. Now, in broad strokes, the Chevron doctrine provides that courts should be reluctant to overrule agency experts when they are carrying out this mission, like when the F.D.A. sets safety standards for prescription drugs. This principle, outlined by the Supreme Court, recognizes that our agencies employ individuals with great expertise in the laws that they are charged with enforcing, like biologists at the F.D.A., and that where those experts have issued rules in highly technical areas, judges should defer to their expertise."
Recalling Bannon's comments last month at the Conservative Political Action Conference, Franken criticized any pending attempt to restrict bureaucratic power. Such a move, he added, would lead to environmental damage and the lessening of business ethics across the nation. He also implied that Gorsuch's nomination was part of Trump's broader strategy to enrich corporate allies while endangering Americans via scaling back "the administrative state:"
"Now, administrative law can be an obscure and sometimes complicated area of the law, but for anyone who cares about clean air, or clean water, or about the safety of our food and of our medicines, it’s incredibly important, and [the Chevron doctrine] simply ensures that judges don’t discard an agency’s expertise without good reason. Justice Scalia recognized this to be true. But for those who subscribe to President Trump’s extreme view, [the Chevron doctrine] is the only thing standing between them and what the President’s chief strategist Steve Bannon called the ‘deconstruction of the administrative state,’ which is shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins.
Speaking before a gathering of conservative activists last month, Mr. Bannon explained that the President’s appointees were selected to bring about that deconstruction, and I suspect that your nomination, given your views is part of that strategy."
Franken pushed Marxist class warfare rhetoric, describing Gorsuch as an ally of capitalists and enemy of contemporary manifestations of the proletariat:
"Decisions that continue to favor powerful corporate interests over the rights of average Americans. During your time on the 10th Circuit, you have sided with corporations over workers, corporations over consumers, and corporations over women’s health ... [You] espouse an ideology that has already infected the bench, an ideology that backs big business over individual Americans and refuses to see our country as the dynamic and diverse nation that my constituents wake up in every morning.
The role of a Supreme Court justice, concluded Franken, was the pursuit of consensus among his or her fellow jurists: "An ability to set aside rigid views in favor of identifying common ground and crafting strong consensus opinions." Capacity for and commitment toward faithful application of the Constitution were unmentioned as requirements for successful jurisprudence at the Supreme Court.
Watch part of Franken's monologue during the Senate Judiciary Committee's first day of hearings on the nomination of Gorsuch to the Supreme Court:
Follow Robert Kraychik on Twitter.