WASHINGTON (CN) - Appearing before the Senate Judiciary Committee on Wednesday, President Donald Trump's nominee to the Third Circuit defended himself against Democrats' attacks about his conservative record.
David Porter, who is up for a seat on the Philadelphia-based Third Circuit, told the Senate Judiciary Committee his public writings questioning the constitutionality of the federal health care law and other comments he made while in private practice will not impact his decision-making on the federal bench.
"Lawyers who aren't judicial nominees are free to make comment, lawyers who are nominees are not so much at liberty to make comment," Porter said. "And there's a difference between, you know, giving advice and taking orders and in that instance I gave my advice and if confirmed it would be my turn to take orders."
Porter appeared before the Judiciary Committee Wednesday despite not receiving the approval of Sen. Bob Casey, D-Pa. Under the tradition known as the blue slip, the committee has in the past declined to schedule hearings for nominees who do not receive the approval of both of their home state senators.
But Sen. Chuck Grassley, the Iowa Republican who chairs the committee, has said he will not allow a single senator to hold up a judicial nomination unless they show the White House did not consult them on a vacancy.
In an April statement on the Pittsburgh attorney's nomination, Casey said the White House nominated Porter despite Casey's clearly articulated objections to his record. In another statement on Wednesday, Casey noted he signed off on Trump's other nominee to the Third Circuit, Judge Stephanos Bibas, despite concerns about his judicial philosophy.
"Instead of working in a bipartisan fashion to put mainstream individuals on the bench, this administration and the Senate majority leader are demanding that the Senate confirm judicial nominees who advocate a hard-right ideology to appease their corporate donors," Casey said in a statement. "As a senator representing more than 12 million Pennsylvanians, I refuse to be a rubber stamp for the extreme right."
Casey does not sit on the Judiciary Committee, but his Democratic colleagues took the opportunity to probe Porter's background, particularly delving into his public writings and ties to controversial groups.
Senators specifically dug into a trio of articles Porter penned around the time the Supreme Court was hearing a challenge to the Patient Protection and Affordable Care Act's individual mandate. One of the articles Porter wrote for the Pittsburgh Post-Gazette argued the Obama administration was defending the requirement that most people buy health insurance using an overbroad reading of the Constitution's commerce and necessary and proper clauses.
"Congress could require people to buy a car because refraining from doing so is an 'economic decision' substantially affecting the automobile industry," Porter wrote at the time. "Congress could require us to purchase a television or a computer because engaging in quiet reflection rather than watching TV or surfing the internet is an 'economic decision' that substantially affects national markets for entertainment and communication."
In a later article for the Center for Vision and Values at Grove City College, Porter called the government's argument in the case a "metaphysical abstraction" that "threatens not merely to further stretch, but finally to break the framers' structural design that for 225 years has preserved individual liberty and served as a check on unlimited federal power."