WASHINGTON ― On the same day President Donald Trump’s intemperate wiretapping tweets gained him a sharp rebuke in Congress, Supreme Court nominee Neil Gorsuch began the process of asserting his independence from him in the Senate, which is considering his nomination to fill the seat of the late Justice Antonin Scalia.
As Gorsuch sat silently Monday through several hours of opening statements by members of the Senate Judiciary Committee, it was Democratic senators who did all they could to throw down the gauntlet for his confirmation hearings on the themes they hope to explore:
The judge’s independence from Trump. The treatment of previous Supreme Court nominee Merrick Garland. Rulings in which Gorsuch is accused of favoring the powerful over the powerless. His views on whether judges should second-guess the expertise of administrative agencies. His constitutional vision for the rights of women, minorities, workers, the poor and religious minorities. The role of money in politics.
All of these were hot topics for Democrats, who don’t have the votes to reject Gorsuch outright but could try to block him on the Senate floor, an option Senate Minority Leader Chuck Schumer (D-N.Y.) has left on the table. The progressive base, meanwhile, just wants the party to fight the nominee tooth and nail ― and so the hearings, which are set to last through Thursday, are their chance to grandstand about the issues Democrats care about.
“You’re going to have your hands full with this president,” Sen. Dick Durbin (D-Ill.) told Gorsuch, who sat attentively as both Democrats and Republicans took turns in praising or raising doubts about him. “He’s going to keep you busy.”
Trump’s controversial policies and imbroglios came up several times at the hearing, but Gorsuch didn’t engage any of them head on when it was his time to address the committee later in the afternoon. But while discussing the role of the judiciary, he did point out that the robes judges wear are meant to signify impartiality toward all.
“Ours is a judiciary of honest, black polyester,” he said. He added that when judges put on robes, “it’s time to lose our egos and open our minds.”
Sen. Dianne Feinstein of California, the committee’s ranking Democrat, said the Senate’s job is to determine if Gorsuch will be “a reasonable mainstream conservative” on the Supreme Court as well as someone who “will protect the rights of all Americans, not just the powerful few.”
She criticized Scalia’s constitutional views, which she said would’ve kept segregation and discrimination against women and LGBT people on the books, then wondered aloud about what Gorsuch’s appointment would mean for the future of abortion rights. Feinstein said that Gorsuch’s writings have been read by both anti-abortion and pro-abortion rights activists to mean that he’d vote to overrule Roe v. Wade, and she pointed out that Trump had campaigned specifically on the promise of nominating “pro-life judges.”
Several Democratic senators highlighted the role two conservative groups, the Federalist Society and the Heritage Foundation, played in shaping Trump’s selection of Gorsuch. Leonard Leo, who leads the Federalist Society, took a leave to advise the president on his court selection.
“I do not know of any other Supreme Court nominee who was selected by interest groups rather than by a president in consultation with the Senate, as required by the Constitution,” said the No. 2 Democrat on the committee, Patrick Leahy of Vermont.
Time and again, Democrats on the committee lauded Garland, the esteemed appeals judge President Barack Obama nominated a month after Scalia’s death but whose nomination was never given the kind of hearing Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is now promptly offering Gorsuch.
Sen. Michael Bennet (D-Colo.), Gorsuch’s home state senator who introduced him alongside Sen. Cory Gardner (R-Colo.), urged his colleagues to give the judge a hearing out of respect for him and for Garland, and to do it “in the manner that his predecessor deserved but was denied.” Bennet is taking heat in Colorado over whether he’ll vote for Gorsuch.
Since Scalia’s death more than a year ago, the Supreme Court has carried on with only eight justices — four appointed by Democratic presidents, four by Republican presidents. The addition of Gorsuch would bring the court back to its prior status quo, with ideologically close rulings depending on Justice Anthony Kennedy, a conservative centrist who has often pivoted on hot-button constitutional issues.
Perhaps because the stakes are high for Democrats, who fear that Trump’s agenda and an entrenched conservative majority on the court put the causes they care about at risk, Leahy posed a series of rhetorical questions of the nominee, who will no doubt get them again once the formal question-and-answer sessions begin Tuesday.
“Will you allow the government to intrude on Americans’ personal privacy and freedoms? Will you elevate the rights of corporations over those of real people? Will you rubber-stamp a president whose administration has asserted that executive power is not subject to judicial review?” Leahy asked.
If progressives are worried that Democrats might botch the Gorsuch confirmation battle, Rhode Island’s Sheldon Whitehouse delivered what’s likely the most potent moment for their base: a spirited speech listing all the cases on which Republican appointees to the Supreme Court have voted in five-justice blocs in important cases that, in Whitehouse’s view, have given Republicans more power.
“I can’t help but notice the long array of 5-to-4 decisions with all Republican appointees to change the law to the benefit of distinct interests: Republicans at the polls and big businesses pretty much everywhere,” Whitehouse said. Among the cases he listed were one that gutted an key section of the Voting Rights Act and the Citizens United decision, which allowed corporations and unions to spend unlimited amounts in elections.
Sen. Richard Blumenthal (D-Conn.), who last month revealed that Gorsuch had told him during a private visit that Trump’s attacks on the judiciary were “demoralizing,” insisted that he’d demand that Gorsuch be more forthcoming with his condemnation.
“It isn’t enough to do it in the privacy of my office or with our colleagues behind closed doors,” he said, adding that he should condemn Trump publicly and explicitly about the president’s verbal assaults on the courts.
After taking the oath in the afternoon, Gorsuch finally got a chance to speak about himself and his record, following introductions by Bennet, Gardner and Neal Katyal, an experienced Supreme Court lawyer who was acting solicitor general in the early years of the Obama administration.
Skirting the kinds of controversial subjects that often divide the high court, the nominee stuck to pleasantries, speaking fondly about his Colorado roots, his family and his legal heroes ― including Kennedy and the late Justice Byron White, for whom he clerked. “Justice Scalia was a mentor, too,” Gorsuch said.
Indirectly, the judge pushed back against Democrats’ attempts to paint him as someone who’d rule against the less powerful, noting that, in his years as appellate judge, he’d sided with Native Americans, class-action plaintiffs suing corporations, prisoners, criminal defendants and undocumented immigrants.
“Sometimes, too, I’ve ruled against such persons,” he added. “My decisions have never reflected a judgment about the people before me.”
He then repeated a line that he used on the day he was nominated to the Supreme Court, emphasizing how judges should stick to the letter of the law ― no more, no less.
“A judge who likes every outcome he reaches is probably a very bad judge, stretching for policy results he prefers rather than those the law compels,” Gorsuch said.
Talking to reporters after Day 1 of the hearings, Grassley said that he expects the Senate to vote on Gorsuch’s nomination before Congress’ Easter recess, which is scheduled to begin April 8, and that he expects some Democrats to join Republicans in putting him through.
Tuesday’s session is expected to be a marathon for Gorsuch, with all 20 senators on the judiciary committee posing questions in 30-minute intervals. That’s at least 10 hours in the hot seat.
UPDATE: This article has been updated with more details from Monday’s hearing.