By David G. Savage
The final day of Judge Neil M. Gorsuch's testimony before the Senate Judiciary Committee got off to an awkward start Wednesday when the Supreme Court unanimously overruled the foundation of one of his opinions in a case involving the rights of children with disabilities.
It was an embarrassing moment for President Donald Trump's Supreme Court pick, breaking shortly after Gorsuch sat down for the third day of a confirmation hearing that has otherwise gone smoothly.
Pouncing on the decision, Democratic senators quickly asked Gorsuch for a reaction.
"That's fine. I will follow the law," Gorsuch told Sen. Richard J. Durbin, D-Ill., in a self-deprecating tone that has been his trademark during the hearing. He laughed and said that he had been handed the ruling on the way to the bathroom during a short break. "If I was wrong, senator, I'm sorry."
Senate Judiciary Committee Chairman Charles E. Grassley, R-Iowa, came to Gorsuch's defense, noting that the 10th Circuit judge's 2008 ruling itself had not been overturned, though it had played a key role in another case that was the subject of Wednesday's high court ruling.
The high court's ruling Wednesday bolsters the rights of millions of disabled children. Justices ruled for the parents of a Colorado boy with autism who had removed their son from a public school because he was screaming in class, climbing on furniture and making no progress. They enrolled him in a private school that specialized in autism where he flourished.
They then sued the school district for a reimbursement, citing the federal law that promises a "free appropriate public education" to all children with disabilities.
They lost in the 10th Circuit Court in Denver, which said the public school program was adequate because it was "merely ... more than de minimis," or minimal. This phrase came from the 2008 opinion by a three-judge panel, including Gorsuch.
But Chief Justice John G. Roberts Jr., speaking for the court, said that standard was too low. The federal law "demands more. It requires an educational program that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances," he said in Endrew F. vs. Douglas County School District.
A child's individualized learning program "must be appropriately ambitious in light of the circumstances," Roberts said. "The goals may differ, but every child should have the chance to meet challenging objectives."
The rest of the day went better for Gorsuch.
In response to questions from Sen Dianne Feinstein, D-Calif., Gorsuch distanced himself from Bush administration policies that authorized waterboarding of detained prisoners. She cited a 2005 document on which Gorsuch had hand-written the word "yes" next to a passage that said aggressive interrogation techniques had yielded valuable intelligence.
What information did he have showing these techniques were effective? she asked.
Gorsuch said he did not have clear memory of this from 12 years ago. "My recollection," he said, "is that that was the position that the clients were telling us. I was a lawyer. My job was an advocate, and we were dealing with the detaining litigation. That was my involvement."
Gorsuch served one year in the Justice Department before being appointed to the 10th Circuit in 2006.
The judge also refused Feinstein's request to endorse or accept the notion of assisted suicide for people who are terminally ill. She cited California's end-of-life option act.
"I, in my life, have seen people die horrible deaths," she said. "The suffering becomes so hard."
Gorsuch said he could discuss this issue because he wrote a book on the topic before he became a judge. In his testimony, he repeated his view that dying people have a right to refuse further treatment, something the Supreme Court recognized 20 years ago.
"At one point, you want to be left alone. Enough with the poking and prodding," he said.
But his book questioned the legality of allowing doctors to give willing patients medicine that could end their lives.
He said doctors may give patients heavy medication for pain, so long as they do not intend the patient to die.
"I drew a line between intent and knowingly," he told the senator.
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