Klobuchar and Franken question Neil Gorsuch, pt. 2

What Minnesota's senators asked about on their final day in front of the SCOTUS nominee.
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Sens. Amy Kklobuchar and Al Franken during questioning of Neil Gorsuch on Wednesday, March 22.

Sens. Amy Kklobuchar and Al Franken during questioning of Neil Gorsuch on Wednesday, March 22.

It was another 10 hours in front of chatty senators for Supreme Court nominee Neil Gorsuch Wednesday.

Gorsuch was in his second (and final) day of answering from members of the Senate Judiciary Committee – a committee that includes both Minnesota Sens. Amy Klobuchar and Al Franken.

Here's what the two senators asked Gorsuch about Wednesday (which you can watch here) – and if you want to catch up on the first day of questioning, here's a rundown of Tuesday's action.

Franken gets on forced arbitration

Franken focused his time on mandatory (or forced) arbitration.

"I don't think that most Americans realize, that when they sign up for a credit card or cable service or sign an employment agreement or fill out their parents' nursing home resident agreement, that they're also signing away their Constitutional right to go to court," he said.

What he's referring to is when agreements for things include fine print that let companies settle any legal matters with a customer through arbitration, rather than the use of a jury. The New York Times had a whole series on it. Essentially, if a company screwed you over and you want to sue them, you might not be able to do so except by going through arbitration – which the Times argued is a way for businesses to circumvent the courts, and keep people from joining together on class-action lawsuits.

Franken spoke about two specific cases: One in which a Minnesota service member who, while he was on duty, had his house foreclosed upon – despite laws saying that can't happen. Dozens of other service members saw the same thing happen. When he tried to file a class action lawsuit, he couldn't because of a mandatory arbitration clause "buried in his mortgage."

The other was the Wells Fargo scandal, with the bank accused of signing unwitting customers up for phony accounts. Franken said some customers tried to take legal action years ago – but were blocked because of these arbitration clauses. Because of that, other Wells Fargo customers weren't notified of potential issues, opening the door up for the behavior to keep happening.

Gorsuch and Franken didn't have a lot of actual discussion on these issues. But the justice nominee said he's a big believer in the right to a trial by jury, and has spoken about parts of these issues before. He also said it's not a judge's job to rewrite laws that might be unfair now – but if there is a law allowing this to happen, and Congress wants to change it, they should go and revise or eliminate it.

After Franken spoke, Republican Sen. Bob Sasse of Nebraska echoed that – telling Franken those stories were concerning. And if they're accurate, they should get together to find a legislative solution.

Klobuchar gets 'nerdy'

This second day was, admittedly, more in-the-weeds and mundane than the first, with a lot of the discussion revolving around legal industry lingo.

"I know this is going to sound nerdy to people that aren't lawyers," Klobuchar even acknowledged early. So what'd she ask about?

She had some questions for Gorsuch about when he decided to view earlier precedents as binding versus not binding, whether something should be seen as a dicta or a holding, and his decision-making when it comes to writing concurring opinions. (See what she meant by nerdy?)

The easiest stuff to parse through came when she returned to her discussion of originalism – a philosophy that the words on the Constitution should be taken to mean what the writers and people at that time meant. She argued Gorsuch seemed to be selective about when he decides to follow that originalist line of thinking. Whether he uses it or not appears to be based on what outcome he might want to reach.

Gorsuch said that's not the case, and that his decisions are often based on precedent. And he hasn't seen judges making rulings just based on their own personal opinions. He said all of the justices in the Supreme Court are "doing his or her level best to apply the law based on the facts, circumstances."

A vote on Gorsuch?

U.S. Supreme Court nominees need to be approved by the U.S. Senate. To get to the full Senate, the Judiciary Committee has to give the nominee the thumbs up – that vote is expected April 3, The Morning Call reports.

The full Senate vote would come after that sometime.

Since Gorsuch's nomination, the prospect of Democrats moving to block the vote have been floated. Though if they do so, Republicans could go to the "nuclear option" – which would make approving Gorsuch easier, though could have long-term consequences. Read more about that debate here.

Leading Democratic Sen. Chuck Schumer on Thursday said he would join other Democrats in filibustering the eventual Gorsuch vote, the Washington Post reported. Which would lead to a showdown with Republicans.

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