Judge Neil Gorsuch heads to Capitol Hill Tuesday for his second day of confirmation hearings for a seat on the Supreme Court, during which senators will get their first chance to question him directly.
During opening statements on Monday, Gorsuch promised to remember the “modest station we judges are meant to occupy in a democracy” if he is elevated to the nation’s highest court, as the hearing on his Supreme Court nomination began Monday amidst Democratic doubts about his impartiality and lingering resentment over the circumstances of his selection.
The day followed a familiar confirmation hearing script – glowing assessments from senators of the party whose president made the nomination, vows of scrutiny from senators out of power and a humble, deferential opening statement from the nominee.
But there was a sharp-edged difference as well. Democrats on the Senate Judiciary Committee made clear they are not over the decision of their Republican colleagues to keep open the seat held by the late Justice Antonin Scalia in order for President Trump to fill it.
And rarely has there been such a demand that a Supreme Court nominee declare his independence from the president who nominated him.
“You’re going to have your hands full with this president. He’s going to keep you busy,” Sen. Dick Durbin, D-Ill., told Gorsuch.
Republicans intend to move quickly on confirming the 49-year-old Gorsuch, who sits on the Denver-based U.S. Court of Appeals for the 10th Circuit. Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said the plan is to have the full Senate vote on Gorsuch early next month, so that he could be on the court for its final round of oral arguments in April.
Democrats are outnumbered 52-48 in the Senate, and it is unclear how hard they want to fight. They could allow Gorsuch’s nomination to proceed on a simple-majority vote, or they could force a procedural vote requiring a 60-vote majority for the confirmation to prevail.
In their round of opening statements, Democrats both questioned the process by which Gorsuch received the nomination and presented him with a laundry list of questions they planned to pursue.
Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the committee, started the day complaining that Republicans blocked consideration of Judge Merrick Garland, Obama’s nominee to replace Scalia after the justice’s death 13 months ago.
Senate Majority Leader Mitch McConnell, R-Ky., decided to block a hearing for Garland, saying that the next president should name the late justice’s successor.
“I’m deeply disappointed that it’s under these circumstances that we begin our hearings,” Feinstein told the committee, saying that Gorsuch was nominated only because of the “unprecedented treatment” of Garland.
In recent days, many Democrats on the judiciary panel said they will wait until the end of the hearings before determining how to proceed, but most signaled on Monday how they plan to proceed on several fronts.
Feinstein said she would ask Gorsuch to clarify his beliefs on abortion rights and gun rights – two issues on which he’s never ruled, but issues that he has mentioned in passing in other legal opinions, she said.
She said she takes issue with Gorsuch’s strict interpretations of the Constitution because, “If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage. Women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.”
Durbin and Sen. Christopher Coons, D-Del., said they would push Gorsuch to clarify his views on religious freedoms.
“Religious freedom must not be the freedom to push our beliefs into the public square,” Coons said.
Sen. Amy Klobuchar, D-Minn., said she would explore his views on campaign finance laws – another area in which his judicial record is thin.
And Sen. Richard Blumenthal, D-Conn., said he planned to draw out the nominee on Trump’s “vicious” attacks on federal judges. He noted that the committee was meeting to consider his nomination “in the midst of a looming constitutional crisis” as FBI Director James Comey was testifying to a House panel that his agency is investigating ties between the Trump campaign and Russian officials.
“The possibility of the Supreme Court needing to enforce a subpoena against the president is no longer idle speculation,” Blumenthal said, adding later: “The independence of the judiciary is more important than ever, and your defense of it is critical.”
Democrats are also expected to press Gorsuch to explain his tenure at the Justice Department during George W. Bush’s presidency, during which he worked on cases related to the detention of terrorism suspects. Durbin noted that Gorsuch helped draft language designed to bolster Bush’s claims of executive authority on matters of torture and the treatment of detainees.
“We need to know what you’ll do when you’re called upon to stand up to this president, or any president, if he claims the power to ignore laws that protect fundamental human rights,” Durbin told him.
Durbin also quoted from a February statement by White House Chief of Staff Reince Priebus, who called Gorsuch “the type of judge that has the vision of Donald Trump.”
“I want to hear from you why Mr. Priebus would say that,” Durbin told the judge.
Democrats are also expected to press Gorsuch to explain comments he made while teaching a class on ethics and professionalism at the University of Colorado School of Law last April. In a letter sent to committee Democrats, one of his former students, Jennifer Sisk, claimed that during a conversation about work-life balance in the legal profession, Gorsuch asked students if they knew of women who had “used a company to get maternity benefits and then left right after having a baby.”
“Judge Gorsuch focused on women having babies, not men expanding their families,” Sisk wrote.
White House officials assisting Gorsuch with his nomination denied the accusation and noted that he earned the highest possible score from students on evaluation questions of “instructor respect and professional treatment.”
In a letter provided by committee Republicans, another student, Will Hauptman, refuted Sisk’s claims saying that while Gorsuch “did discuss some of the topics mentioned in the letter, he did not do so in the manner described. The judge frequently asked us to consider the various challenges we would face as new attorneys.”
Gorsuch steered clear of controversy in his 13-minute introductory address. He tried to reassure senators he was a mainstream jurist who was in the majority in 99 percent of the 10 years of cases he decided on the appeals court.
Gorsuch said he has ruled for disabled students, prisoners, undocumented immigrants, the rich and poor “and against such persons too.”
“But my decisions have never reflected a judgment about the people before me – only my best judgment about the law and facts at issue in each particular case,” he said.
The outdoorsy Gorsuch looked tanned and interested in hours of speeches from the senators, taking notes and nodding his head. When Durbin – after complaining about Garland’s treatment – said Gorsuch should nonetheless be judged on his own merits, Gorsuch silently mouthed, “thank you.”
There was a touching if awkwardly staged embrace with his wife Louise after he professed his love, and he choked up when he remembered his “Uncle Jack,” who recently died. Gorsuch’s mother was Ann Gorsuch Burford, who had a stormy tenure in Washington as President Ronald Reagan’s first head of the Environmental Protection Agency.
“She taught me that headlines are fleeting – courage lasts,” Gorsuch said.
Gorsuch was promoted by conservative legal activists because of his sterling credentials, a decade of right-of-center rulings and his allegiance to the same brand of constitutional interpretation that Scalia followed. In a sign of the bipartisan support he enjoys, Gorsuch was introduced by the senators from his home state of Colorado, Republican Cory Gardner and Democrat Michael Bennet – who has not yet signaled whether he plans to vote for the judge – and Neal Katyal, who served as acting U.S. solicitor general for Obama.
Republicans cheered Gorsuch on Monday, acknowledging the strong Democratic attacks to come, but noting that the nomination came with broad public support.
Sen. Ted Cruz, R-Texas, said that Gorsuch’s nomination comes with “super-legitimacy” because he was on a list of potential court nominees that Trump touted during his presidential campaign.
“The American people played a very direct role in helping choose this nominee,” Cruz added.
Sen. Lindsey O. Graham, R-S.C., dismissed Democratic claims of a grand Republican plan to nominate someone with similar views to Trump.
“If you believe this has been a great plan to get a Trump nominee on the court, then you had to believe Trump was going to win to begin with,” he said.
The frequent Trump critic added: “Obviously, I didn’t believe that, saying all the things I said.” Some in the room erupted in laughter.
In another of the day’s lighter moments, Sen. Jeff Flake, R-Ariz., acknowledged that Gorsuch is still widely unknown by most Americans by recalling how the nominee’s name had been misspelled in recent remarks he was reading off a teleprompter.
It was replaced with “Judge Grouch,” Flake said.
By the end of this week, “every spell-checker in the country will know your name – and Judge Grouch is about as far as you can get from Judge Gorsuch in terms of your temperament,” Flake said.
He then quipped: “That may change by the end of the week as well.”
(c) 2017, The Washington Post · Robert Barnes, Ed O’Keefe, Sean Sullivan