Judge Neil Gorsuch on Tuesday smoothly fielded questions on everything from abortion to wiretaps thrown by Sen. Dianne Feinstein of California and her allies who sought without apparent success to unsettle the Supreme Court nominee.
During a daylong Senate Judiciary Committee hearing that amounted to an endurance test for lawmakers and nominee alike, Gorsuch repeatedly cited his respect for precedent, his open mind and an unwillingness to speculate or opine about live controversies. While he may not have won any converts, he appeared to more than hold his own.
“How do we have confidence in you that you won’t just be for the big corporations, that you will be for the little man?’ Feinstein asked, underscoring one Democratic line of attack. “I’m just looking for something that would indicate that you would give a worker a fair shot. Maybe it’s in your background somewhere that I don’t know about.”
Gorsuch countered that he has ruled “for the little guy as well as the big guy” in many cases, and cited a string of examples from what he called a “long, long list.” In a 2015 decision, for instance, he sided with Colorado residents in a long-running class-action lawsuit claiming they had been harmed by waste from the nearby Rocky Flats nuclear weapons plant.
“I’m a fair judge,” Gorsuch said. “I can’t guarantee you more than that.”
When I became a judge, they gave me a gavel, not a rubber stamp.
Judge Neil Gorsuch
President Donald Trump nominated the 49-year-old Gorsuch for the seat formerly held by the late Justice Antonin Scalia, who passed away in February 2016. Gorsuch currently serves on the Denver-based 10th U.S. Circuit Court of Appeals.
Following four hours’ of opening statements Monday, the Tuesday hearing offered lawmakers their first opportunity to question Gorsuch in public. Flavoring his answers with the occasional “gosh” and “golly” and references to “Sister Mary Rose Margaret, (who) taught me how to read,” the silver-haired Colorado native kept his cool, though his tone at times edged toward being stern.
“A person like you, no matter what pressures are applied to you, will say over and over again, ‘I want to hear what both sides have to say. I want to read their legal arguments, look at the facts and I will decide,’ ” said Sen. Lindsey Graham, R-S.C.. “That, to me, is reassuring.”
“I can promise you no more than that, and I guarantee you no less than that, in every single case that comes before me,” Gorsuch said.
The senior Democrat on the Judiciary Committee, Feinstein led off her party’s questioning in an alternating round where Republicans largely tossed softballs and individual Democrats used their allotted 30 minutes to attack. Repeatedly, Democrats cited Senate Republicans’ refusal last year to consider President Barack Obama’s nominee, Judge Merrick Garland.
Citing his need to steer clear of politics, Gorsuch declined to comment on the GOP’s power play or on what Sen. Sheldon Whitehouse, D-R.I., characterized as the millions of dollars spent by conservative groups in support of his nomination. Noting that the issue is “being litigated actively,” Gorsuch declined as well to discuss the Trump travel ban targeting six mostly Muslim countries.
The court to which Gorsuch has been nominated currently operates with eight justices, who have subsequently deadlocked on some key controversies, such as a challenge to the fees charged non-members of the California Teachers Association. An unabashed admirer of Scalia, Gorsuch would effectively retain the court’s prior ideological balance if he is confirmed.
Gorsuch cast himself as being in the judicial mainstream, noting that he has participated in some 2,700 cases during his decade as an appellate judge and that in 97 percent of them the rulings were unanimous. He repeatedly pledged his respect for Supreme Court precedent, including the 1973 Roe v. Wade decision upholding a woman’s right to an abortion.
“It has been reaffirmed many times,” Gorsuch said under questioning from Feinstein.
As a candidate, Trump pledged to appoint judges who oppose abortion rights but, as is customary, Gorsuch testified that Trump administration officials did not seek to pin him down about specific cases.
“I don’t believe in litmus tests for judges,” Gorsuch said, adding that “no one in that process asked me for any commitments, or any kinds of promises about how I’d rule in any kind of case.”
The former chair of the Senate Select Committee on Intelligence, Feinstein pressed Gorsuch about his role in the George W. Bush administration’s Justice Department and the approval of harsh anti-terror techniques including waterboarding. Gorsuch’s critics have sought to link him to the subsequently discontinued detention and interrogation program.
“All I was was a lawyer for a client,” Gorsuch said, adding that the passage of time made some Bush administration details difficult to recall.
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Republicans enjoy an 11-9 advantage on the Judiciary panel, guaranteeing that Gorsuch will pass successfully through the committee, perhaps before the Senate’s Easter recess, which starts April 7. Before the vote, he will have to answer additional written questions from committee members.
If some Senate Democrats follow through on their threat to filibuster, 60 votes will be needed to cut off debate. The 52 Senate Republicans would need to convince eight Democrats to side with them to break a filibuster. Doing so would lead to an up-or-down vote on Gorsuch, who then would need 51 votes for confirmation.
If the GOP fails to get 60 to cut off debate, it could ram through a rules change prohibiting the use of a filibuster on Supreme Court nominations.
So far, though, Democratic leaders have not been enforcing party discipline on a filibuster, as they heed the needs of red-state lawmakers who face tough re-election prospects next year. Some may also counsel holding back ammunition to fire at the next Supreme Court nominee, who has the potential to more dramatically shift the court’s ideological balance than is likely under the Gorsuch-for-Scalia swap.
“Quite frankly, I was worried about who he would pick,” Graham said of Trump’s first selection. “Maybe somebody on TV.”
Michael Doyle: 202-383-6153, @MichaelDoyle10