With Gorsuch Hearings Set To Begin, It’s Democrats Who Are In The Hot Seat
The confirmation hearings for Judge Neil Gorsuch to succeed Antonin Scalia on the Supreme Court begin tomorrow morning, but it may be Senate Democrats who are really in the hot seat:
When Judge Neil Gorsuch arrives on Capitol Hill on Monday morning to begin his confirmation hearings for a seat on the Supreme Court, he will give President Trump his first chance to make a lasting imprint on the federal judiciary — and Republicans a fresh test to work their will now that they control all of Washington’s levers of power.
Gorsuch, a federal appeals court judge from Colorado, 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 employed by the late justice he would replace, Antonin Scalia.
“Single best thing the president’s done,” said Sen. Lindsey O. Graham (R-S.C.), a frequent Trump foil who predicted Republican unity on the matter and an easy victory for the president following the string of controversies that Trump has wrought since he took office.
All of that also sets up a stark dilemma for Senate Democrats. Monday brings their newest opportunity since the confirmation hearings of Trump’s Cabinet to take a stand against a young administration that has horrified liberal Americans with efforts to strip away provisions of the Affordable Care Act, impose an entry ban on some immigrants and deeply cut federal agencies.
The left also remains angry about a Supreme Court seat that has sat vacant since Scalia died 13 months ago, after which Senate Majority Leader Mitch McConnell (R-Ky.) decided to block a hearing for President Barack Obama’s selection for the seat, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.
Gorsuch seemed to forecast what might await him from Democrats in a 2002 column he wrote lamenting the state of the Supreme Court nomination process: “When a favored candidate is voted down for lack of sufficient political sympathy to those in control, grudges are held for years, and retaliation is guaranteed.”
Yet Democrats are divided about how to take on a genial jurist who has made few waves in the weeks since Trump nominated him and he began meeting with lawmakers on Capitol Hill.
Gorsuch “is a bit of a puzzle,” said Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Senate Judiciary Committee. “We’re going to try to put those pieces together so that the puzzle is complete and we have an understanding of what kind of a fifth vote will be going on the court.”
Asked about what more she hopes to learn about Gorsuch’s stances, Feinstein said: “Voting rights. Right to choose. Guns. Corporate dollars in elections. Worker safety. Ability of federal agencies to regulate. All of the environmental issues — water, air.”
Senators and their staffs are also examining Gorsuch’s role as a high-ranking official in the U.S. Justice Department at the time the George W. Bush administration was dealing with Guantanamo Bay detainees, reports of torture and anti-terrorism policies.
A new trove of materials released this weekend show Gorsuch playing a central role in coordinating legal and legislative strategy, but portraying himself as reconciling the many opinions of those in the administration rather than driving policy.
“I am but the scrivener looking for language that might please everybody,” he wrote in one email.
Four days of hearings are set to begin Monday, when Gorsuch will sit and listen for several hours as members of the Judiciary Committee read opening statements. He is poised to deliver his opening statement on Monday afternoon, giving senators and the nation an early indication of how he might serve on the court.
On Tuesday and Wednesday, Gorsuch is set to face at least 50 minutes of questioning by each member of the panel. The proceedings are expected to conclude Thursday with a panel of witnesses speaking for or against Gorsuch.
Some of the issues that normally animate Supreme Court confirmation hearings won’t depend upon Gorsuch. Decisions from last term showed there was still support on the court for limited affirmative action in higher education, for instance. The majority that found a constitutional right for same-sex couples to marry remains. And whatever Gorsuch’s position on abortion rights, Justice Anthony M. Kennedy’s vote to strike down a Texas law last year reaffirmed the court’s rulings that say government may not pass restrictions that unduly burden a woman’s right to an abortion.
But Gorsuch would probably reinforce the court’s pro-business image and skepticism about some significant environmental programs begun under Obama. His past decisions show him to be extremely protective of the rights of those who object to even generally applicable government laws and regulations that they say violate their religious beliefs.
If Gorsuch is approved in time for the court’s April hearings, he could play a significant role in a separation of powers case in which a church complains it was illegally denied a state grant. A conservative movement to curb the power of labor unions — stalled last year by Scalia’s death — is sure to resume. Cases involving legal protections for gay and transgender people are likely to arrive at the court soon.
Beyond their questions about Gorsuch’s own record, Democrats plan to use his confirmation hearing to question the overall direction of Chief Justice John G. Roberts Jr.’s court.
“When I hear my Republican colleagues say, ‘We want another judge like Scalia, who isn’t an activist,’ I say, ‘What are you talking about? This has been an incredibly activist court,’ ” said Sen. Al Franken (D-Minn.), a member of the Judiciary Committee. “So I want to ask him” about that.
Senate Minority Leader Charles E. Schumer (D-N.Y.) said Republicans should expect Democrats to question Gorsuch aggressively because “we’re in a new world” in which Trump is pushing the limits of his Constitutional authority. Knowing where Gorsuch stands on that issue is critical, he said.
“I have deep, deep doubts about him and his judicial demeanor, and the fact that he appears to be a calm, erudite person is not the key issue here,” Schumer said. “There are lot of people like that. It’s what goes into how he decides cases.”Judge
Sen. Richard J. Durbin (D-Ill.) said he will ask Gorsuch to weigh in on Trump’s push to implement an entry ban on visitors from certain majority-Muslim countries, because “the Supreme Court in the near future will be tested on constitutional questions involving separation of powers.”
Franken and Sen. Amy Klobuchar (D-Minn.) said they want to press Gorsuch on his cases involving campaign finance law, while Franken said he will also focus on Gorsuch’s record on voting rights and women’s reproductive rights. Sen. Patrick J. Leahy (D-Vt.) said he plans to use documents provided by the Justice Department to ask Gorsuch about his years working for Bush on such matters as executive authority and the interrogation of terrorism suspects.
Gorsuch “is going to have to establish very much that he’d be independent of any president and that he’s going to uphold the rights of all Americans,” Leahy said. “He’s got a lot of work to do in that regard.”
Many conservative activists and GOP lawmakers say that the laundry list of Democratic concerns is evidence that they don’t quite know how to pin down Gorsuch.
Questions about Gorsuch’s potential independence from the Trump White House or conservative causes will be “an exercise in self-contradiction for the Democrats,” said Leonard Leo, who has been advising Trump on judicial matters and is on leave from his role as executive vice president of the conservative Federalist Society, which helped advise Trump on his list of potential court nominees.
“They want Judge Gorsuch to say, ‘I’m my own man, I’m independent, I’m going to evaluate the actions of the executive branch on their own merits without regards to the president or any political issue,’ ” he said. “And then 10 minutes later they’re going to ask him to promise how he’s going to rule on Roe v. Wade and every other case that comes before the court.”
“There’ll be an effort to use him as a piñata to jam the president,” Leo said, later adding that such attempts would be “unfortunate and inappropriate.”
In a separate article also published today, Politico notes that Democrats are being pushed by liberal activist groups to take a hard line on the Gorsuch nomination even before the hearings have started and before it’s even clear whether or not there could possibly be anything about him that would allow Democrats to mount a credible campaign against him. As it stands, what we know about Gorsuch’s record as a Judge doesn’t indicate anything all that controversial among the opinions that he’s written. Part of the reason for that is that he has not written many if any opinions on issues such as abortion rights, marriage equality, affirmative action, voting rights, or any of the other hot-button issues that are likely to come up at this week’s hearings. As a result, Gorsuch begins the hearings as something of a cipher and is likely to remain one absent something unforeseen. For example, Democrats on the committee are likely going to find it fruitless to ask Gorsuch to comment on either pending cases or issues that are likely to come before him either on the Supreme Court or, if he isn’t confirmed, as a Judge on the Tenth Circuit Court of Appeals. In those situations, Gorsuch will likely follow the custom of previous nominees and say he can’t comment on cases that might come before him, such as the ongoing legal battles over Trump’s Executive Order on immigration and travel from several Muslim nations, the recent legal battles involving issues such as the rights of transgender people, voting rights, and abortion rights. Instead, what we’re likely to hear from Gorsuch are responses similar to what we’ve heard from other nominees that end up being generalized responses that touch on things like the value and applicability of precedent and statements about judicial independence. Whether the Senators asking the questions consider this responsive or not will be up to them, but Gorsuch has been through a hearing like this before and he’s no doubt aware of how the game is played. Absent a disclosure that we don’t know about yet, I doubt the week will end with Gorsuch any the worse for wear than he is today.
Instead of asking Gorsuch about specific cases or hypothetical cases, the Senators questioning him should spend the time they have asking about Gorsuch’s views in a way that may actually provide some clues as to what kind of Justice he would be. For example, what is his view on the value of precedent and the respect it needs to be given? As a Circuit Court Judge, Gorsuch has been bound by the precedents established by the Supreme Court and by the rulings of from within the 10th Circuit itself. As a member of the Supreme Court, though, he’d be one of nine people in the country with the power to overturn, follow, reinterpret, or ignore precedent in the cases that come before them. Other potentially fruitful areas of inquiry include Gorsuch’s views on issues such as the separation of powers among the branches of the Federal Government, Federalism and the distinctions between the proper powers of Congress and the proper province of the states, and his general views in areas such as the First Amendment, Second Amendment, and Fourth Amendment. Additional potential lines of inquiry could include judicial independence and other matters that are likely to become even more important in the coming years. How forthcoming Gorsuch will be on the issues remains to be seen but these types of questions are likely to provide more information that trying, and likely failing, to get the nominee to talk about specific cases and issues.
From where things stand right now, I anticipate that Gorsuch will likely be confirmed in the end, albeit most likely on a largely party-line vote. In theory, Democrats do have the power to block him completely if they remain unified since Republicans lack the sixty votes necessary to invoke cloture and proceed to a final vote. As I’ve said in the past, though, it strikes me that they will ultimately view this as not the hill to die on. First of all, putting Gorsuch on the Court will not result in a significant change in the ideological makeup of the Court from where it was before Justice Scalia died. Back then, there were four solid conservative Justices, four solidly liberal Justices, and Justice Kennedy in the middle. Even with this makeup, this was the way the Court was when it upheld the Affordable Care Act to two challenges, issued landmark rulings on marriage equality, and refrained from issuing a ruling that gutted affirmative action. Confirming Gorsuch, then, would be something akin to a return to the status quo that existed prior to Scalia’s death. Rather than fight Gorsuch’s nomination tooth and nail and risk the possibility that doing so causes the GOP to deploy the ‘nuclear option’ and eliminate the filibuster either entirely or just for Supreme Court nominees, Democrats would arguably be well-advised to hold their fire for the next potential Supreme Court nomination when the issue on the table will likely be replacing a Justice such as Kennedy, Ginsburg, or Breyer, something that would create a five-vote majority on the conservative side of the bench and remake the courts for a generation or longer. Add into that the fact that many of the Democrats facing re-election in 2018 come from red states that have long gone Republican or states which Trump won in 2016, and the argument for withholding a no-holds-barred blockade strategy would be in the best interest of Senate Democrats. At the very least, the realities of the election picture in 2018 likely mean that it could be difficult for Minority Leader Chuck Schumer to hold his caucus together on this nomination.
Because of all that, I expect that absent some bombshell that comes from these hearings, Gorsuch will ultimately be confirmed before the end of the Court’s current term in June. The only question is whether that confirmation will come soon enough for Gorsuch to participate in the final round of oral arguments in April.