Outside the Beltway

Gorsuch Sails Through First Day Of Questioning

Day One of the questioning of Judge Neil Gorsuch went very well, and it suggests that his path to confirmation is basically clear of serious obstacles.

Doug Mataconis · Wednesday, March 22, 2017 · 20 comments

Judge Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, sat through more than ten hours of hearings yesterday during which he was questioned by every member of the Senate Judiciary Committee, and by and large had what can be characterized as a very good, albeit contentious at times, day:

Judge Neil Gorsuch prepared for a third day of confirmation hearings for a seat on the Supreme Court Wednesday after a grueling day answering questions during which he stressed his independence and defended the integrity of the federal judiciary as senators pressed him about his judicial philosophy and what one senator called “the elephant in the room” — President Trump.

From the first question from a friendly Republican to a grilling by a Democrat hours later, Gorsuch was called upon on the second day of what is expected to be four days of hearings to state his impartiality and reassure senators that he would not be swayed by political pressure if he wins confirmation, which appeared even more likely after his marathon session.

Gorsuch reiterated in public what he had told many senators in private — that he is offended by attacks like the ones leveled by President Trump against federal judges who have ruled in the past year in cases involving him.

“When anyone criticizes the honesty or the integrity or the motives of a federal judge, I find that disheartening. I find that demoralizing — because I know the truth,” Gorsuch told Sen. Richard Blumenthal (D-Conn.).

“Anyone including the president of the United States?” Blumenthal asked, who had made the elephant-in-the-room comment.

“Anyone is anyone,” Gorsuch said.

Gorsuch declined, however, to comment specifically on Trump’s various criticisms about federal judges, including an Indiana-born judge of Mexican descent who handled a federal court challenge to an online university bearing Trump’s name, or the “so-called” judge who ruled against the president’s first attempt to ban travelers from Muslim-dominant countries from entering the United States.

“I’ve gone as far as I can go ethically,” Gorsuch told Blumenthal.

It was a dramatic moment in a day that for the most part lacked color. Gorsuch refused to be pinned down on most of the issues that Democrats raised: his allegiance to Roe v. Wade, his views on money in politics, the extent of the Second Amendment.

He portrayed what Democrats saw as controversial rulings in his 10 years on the U.S. Court of Appeals for the 10th Circuit in Denver as authentic attempts to interpret the laws that Congress writes.

“If we got it wrong, I’m very sorry, but we did our level best,” he said about a decision criticized by Sen. Richard J. Durbin (D-Ill.), but added: “It was affirmed by the Supreme Court.”

Sen. Al Franken (D-Minn.) questioned Gorsuch’s ruling in what has become a celebrated case of a trucker who was fired after unhitching his trailer in subzero weather and driving away in search of warmth and safety. Gorsuch was the lone dissenter in saying a federal law did not protect the driver, but Franken said the judge could have ruled that a strict interpretation of the law would lead to an absurd result.

“I had a career in identifying absurdity, and I know it when I see it,” Franken said.

Republican senators did little more than set up Gorsuch, 49, to display an encyclopedic knowledge of the Constitution and Supreme Court precedent, and to allow him to stress his roots as an outdoorsy Westerner.

“What’s the largest trout you’ve ever caught?” asked Sen. Jeff Flake (R-Ariz.)

Gorsuch will be at the witness table again Wednesday as well as the fourth and final day of hearings scheduled for Thursday

Gorsuch seemed happy at the outset of the hearing to take what even he called the “softball” question offered by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) about whether he would have any trouble ruling against Trump, the man who nominated him.

“I have no difficulty ruling against or for any party other than based on what the law and the facts of a particular case require,” Gorsuch told the panel. “And I’m heartened by the support I have received from people who recognize that there’s no such thing as a Republican judge or a Democratic judge — we just have judges in this country.

“My personal views … I leave those at home,” he added later.

The Columbia-Oxford-Harvard graduate employed a homespun tone — “gosh,” “golly” and “nope” punctuated his answers. Corny dad jokes fell flat, especially with the Democratic senators.

They pressed him on abortion, gun rights, privacy and the protracted 2000 presidential campaign recount. As other Supreme Court nominees have, Gorsuch explained that it would be improper to give his views on cases that might come before him or to grade decisions made in the past.

He had a tense encounter with Sen. Sheldon Whitehouse (D-R.I.), who sparred with him on issues of campaign finance and “dark money,” including a $10 million campaign by the group Judicial Crisis Network to advocate for Gorsuch’s confirmation.

Whitehouse said the group’s donors do not have to be disclosed, and he wondered what they saw in Gorsuch that would warrant such an expenditure.

“You’d have to ask them,” Gorsuch said.

“I can’t because I don’t know who they are,” Whitehouse shot back.

Democrats questioned him about his work at former president George W. Bush’s Justice Department and whether he’d rule against Trump’s travel ban.

Gorsuch declined to express his views on Trump’s move to ban travelers from several Muslim-majority countries because “that’s an issue that is currently being litigated actively.”

When Sen. Patrick J. Leahy (D-Vt.) mentioned that a Republican lawmaker recently suggested that Gorsuch would uphold Trump’s ban if it came before the court, Gorsuch snapped: “Senator, he has no idea how I’d rule in that case.”

Other senators quizzed Gorsuch about several of Trump’s past statements. During the presidential campaign last year, Trump said that he would nominate people to the Supreme Court who would overrule Roe v. Wade and return decisions on abortion back to the states.

Sen. Lindsey O. Graham (R-S.C.) asked Gorsuch whether Trump had asked him to do that during his interview before his nomination.

“Senator, I would have walked out the door,” Gorsuch replied.

(…)

Gorsuch also forcefully rejected claims by one of his former law school students that he had suggested that women take advantage of maternity leave policies by not telling the truth in job interviews about their plans to have families. Democrats had seized on the accusations when they surfaced Sunday and vowed to ask Gorsuch about them.

When Durbin asked about the topic, Gorsuch explained that he has taught ethics classes at the University of Colorado Law School for several years. Based on his years of teaching young law students, he said that the corporate world, particularly law firms, continue to treat women poorly and often ask inappropriate questions in job interviews that are used to weed out female applicants who plan to have children.

Republicans intend to move quickly on confirming Gorsuch. Those on the Judiciary Committee hope to refer him to the full Senate on April 3 so that he can be confirmed before Easter.

But Senate Minority Leader Charles E. Schumer (D-N.Y.) warned Republicans on Tuesday that his party would attempt to slow down consideration of Gorsuch because Republicans last year blocked then-President Barack Obama’s attempts to fill the vacancy created by Justice Antonin Scalia’s death, and because Trump’s presidential campaign is the subject of an ongoing FBI investigation.

From beginning to end, Gorsuch handled himself very well throughout the course of yesterday’s hearing notwithstanding its length and the fact that there were a paucity of breaks during the course of the day, with the only major ones coming at lunchtime and when Senators needed to take time to vote on several matters on the floor of the Senate. This led to several examples of the kind of joviality that one sees during long days like this on Capitol Hill, with even Democratic Senators who were tough in questioning the nominee seeming to be warmed to a nominee that was relatively unknown at the time that he was selected by the President shortly after Election Day. As expected, Democratic Senators were much tougher on Gorsuch in their questioning than Republicans, with many Senators focusing on trying to pin Gorsuch down on controversial topics ranging from the President’s Muslim travel plan and the Second Amendment to the Hobby Lobby case, in which Gorsuch had played a role as a member of the 10th Circuit Court of Appeals, and, of course, abortion. As expected, Gorsuch followed the example of recent Supreme Court nominees in invoking what has come to be called the ‘Ginsburg Rule’ named after Justice Ruth Bader Ginsburg and responding that it would be inappropriate and unethical both as a present-day Judge and potential future Supreme Court Justice to comment directly on the merits of cases and issues that he could be asked to rule upon in the future. This response, while no doubt frustrating for Senators, is an appropriate one under the canons of Judicial ethics, which require Judges to take care not to express personal opinions on issues that they could be called upon to rule in the future. On some level I suppose one could argue that this is a dodge by nominees to avoid answering substantive questions, it is one that has unfortunately become necessary given the extent to which Supreme Court nomination fights have become in the last thirty years or so. Additionally, given that this is basically the same response we’ve gotten from Republican and Democratic nominees, many of which have been confirmed overwhelmingly, over the past twenty years it can hardly be argued that Gorsuch is doing anything unprecedented in only commenting in generalities about issues that might come before him in the future. Finally, I would argue that this is exactly the type of response we should hope for from a judicial nominee. As Gorsuch put it at one point yesterday the one thing he always hoped for when he was a practicing attorney was that, win or lose, the Judge he was arguing a case before would be fair. A Judge who takes the bench having already expressed opinions on the issues in a particular case is arguably putting their own fairness into doubt, and that undermines confidence in the judicial system as a whole.

There were several moments where yesterday’s questioning did manage to get into some of the substantive issues that I touched on in a post last week, most especially when it comes to Gorsuch’s view on the role of precedent and the respect it deserves even at the Supreme Court level. Gorsuch’s responses in this area revealed a Judge who strikes me as having an appropriately respectful view of the role of precedent and a future Justice who would recognize the grave responsibility that overruling long-standing precedent places on the nine members of the nation’s highest Court. In response to questioning from both Republican and Democratic Senators, Gorsuch made clear that precedent that has withstood the test of time should not be overruled unless there was a very good reason. Obviously, much of this talk about precedent was intended to be a veiled way of getting at what has long been the ‘third rail’ of modern judicial confirmation hearings, the Supreme Court’s 1973 ruling in Roe v. Wade, which established the right of women to have abortions at various points in pregnancy, which has been further elaborated on in follow-up opinions in cases such as Webster v. Reproductive Health Services, Planned Parenthood v. Casey, and, most recently, Whole Women’s Health v. Hellerstedt, in which a 5-3 Court struck down the most restrictive provisions in a Texas statute that purported to regulate the operation of abortion clinics that made it essentially impossible for all but a handful of clinics in the state to operate. As with other issues, Gorsuch declined to let himself be trapped into responding substantively on the issue of abortion, but his comments on precedent were obviously intended to at least leave the impression that a Justice Gorsuch would be inclined to directly overrule Roe or its progeny, something that President Trump promised of his nominees during the Presidential campaign.

Gorsuch faces another day of questioning today and although it’s not likely to last quite as long as yesterday is, it will likely be just as contentious, at least on the Democratic side of the aisle. By and large, none of the Democratic Senators were able to really land a hard punch on Gorsuch yesterday, so they’ll likely use their time today trying again to pin him down on controversial issues such as abortion or issues of LGBT rights. However, if Gorsuch continues to handle those questions with the same skill he did yesterday then it’s unlikely they’ll cause much damage to his chances of being confirmed, something which seems even more likely after yesterday than it was before the hearings began. Republicans seem to be on track in their plan to get the nomination successfully voted out of the Judiciary Committee fairly quickly, something they’ll be able to accomplish even if every Democrat on the committee votes against him. At that point, the only question will be how quickly a floor vote can be arranged under Senate rules. Much of that, of course, will depend upon how united Democrats are in opposition and how much they actually choose to fight this nomination. As I’ve noted before, this isn’t as easy a question as it might appear to be given that it’s unclear that Minority Leader Chuck Schumer can keep his caucus united enough to block Republicans from getting the 60 votes they need to block a final floor vote. As a result, the idea that Gorsuch could be confirmed before the Easter break is not at all out of the question. If that happens, Gorsuch would be able to take the bench in time to participate in the final weeks of oral argument at the Court during which the Court will hear oral argument in some thirteen cases beginning on April 17th.