Supreme Court nominee Neil Gorsuch said on Wednesday presidents must obey court orders and expressed uncertainty about language in the Constitution barring U.S. government officials from taking payments from a foreign country as Democrats grilled him on issues involving President Donald Trump.
Gorsuch, the conservative appeals court judge from Colorado nominated on Jan. 31 by Trump to a lifetime job on the nation’s highest court, was peppered with questions on the third day of his Senate Judiciary Committee confirmation hearing.
While his confirmation process looked to be moving forward smoothly, committee Democrats pressed him on matters swirling around Trump, even asking him about the standards for impeachment. If confirmed by the full U.S. Senate, he would reinstate a conservative majority on the court.
Vermont Senator Patrick Leahy cited comments made by Trump adviser Stephen Miller after federal courts blocked the president’s executive action banning people from several Muslim-majority nations from entering the United States. On Feb. 12, Miller challenged the authority of courts to rule on the issue, saying the president’s power to enforce the ban should not be questioned.
“I’m a judge now. I take that seriously. And you better believe I expect judicial decrees to be obeyed,” Gorsuch said.
“That’s the rule of law in this country,” Gorsuch added.
Gorsuch declined to say how he would approach an alleged violation of the U.S. Constitution’s Emoluments Clause, which prevents American officials from accepting any gifts or favors from foreign governments without congressional approval.
“The question is: What exactly does that mean?” Gorsuch said, adding that there was ongoing litigation on the matter. “I have to be very careful about expressing any views,” he added.
Trump has been sued by ethics lawyers, who say his businesses have accepted payments from foreign governments in violation of the Emoluments Clause.
On the basis for which an official can be impeached, Gorsuch said historically the focus has been on “high crimes” rather than “misdemeanors.” He said the number of criminal misdemeanors on the books has increased substantially since the U.S. Constitution was written in the 18th century.
BOUND BY PRECEDENT
A Supreme Court ruling on Wednesday made its way into Gorsuch’s hearing. The court ruled in favor of an autistic boy, finding that public schools must offer disabled students a special educational program that is sufficiently ambitious to ensure they make progress. The unanimous decision rejected the approach taken by Gorsuch in a 2008 ruling that he was being questioned about just as the new decision was announced.
Gorsuch said he was bound by court precedent when he participated in the decision, saying it would be “heartbreaking” to suggest that he would like ruling against disabled students.
Gorsuch is virtually assured of winning approval in the committee, moving his nomination to the full Senate. There Gorsuch’s challenge will be to gather enough Democratic support to avoid a prolonged floor fight with the potential, if it gets rocky, of changing how the Senate works.
Gorsuch has sidestepped answering whether he thought a series of contentious cases from the past had been decided correctly, including cases on abortion, gun rights, political spending and religious rights.
“What worries me is you have been very much able to avoid any specificity, like no one I have every seen before,” Senator Dianne Feinstein, the panel’s top democrat, told Gorsuch.
Democratic Senator Dick Durbin added that Gorsuch had “fended off most questions of substance.” Republican Senator Lindsey Graham accused Democrats of applying a “double standard,” saying they had no problem when Supreme Court nominees by Democratic presidents were similarly elusive.
Feinstein asked Gorsuch to explain a document dating from his work in former President George W. Bush’s Justice Department related to 2005 anti-torture restrictions.
The document asked whether the aggressive interrogation techniques used by Bush’s administration had yielded valuable intelligence or stopped a terrorist incident, and Gorsuch had written “yes.” Gorsuch said he was merely doing what he was told by the administration. “My recollection of 12 years ago is that was the position that the clients were telling us,” he said. “I was a lawyer, my job was as an advocate and we were dealing with detainee litigation.”
Gorsuch is assured of support from the Republicans who hold 52 seats in the 100-member Senate. But the Senate has a 60-vote hurdle for confirmation of Supreme Court justices, meaning Gorsuch would need the backing of eight Democrats.
If the Democrats stand together, Republicans could change the Senate rules to allow confirmation by a simple majority vote.
The panel will hold a closed-door session later on Wednesday before final testimony on Thursday from outside witnesses who oppose or support Gorsuch. A committee vote is expected on April 3. Senate Republican leader Mitch McConnell said on Tuesday Gorsuch would be confirmed before the Senate’s mid-April recess.
If confirmed, Gorsuch would replace conservative Justice Antonin Scalia, who died in February 2016.
(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham)