Judge Neil Gorsuch moved smoothly through the heart of his Supreme Court confirmation hearing Tuesday, fending off Democratic attacks with a helping hand from each of the two Texas Republican lawmakers on the Senate Judiciary Committee.
“Does a good judge decide who should win and then work backward to try to justify the outcome?” Sen. John Cornyn asked in one characteristic GOP exchange.
“That’s the easiest question of the day, Senator,” Gorsuch replied. “Thank you.”
Cornyn’s junior colleague, Sen. Ted Cruz, added the observation that Gorsuch had performed “with flying colors,” and Cruz followed with an opening jokey question drawn from the cult science-fiction classic “The Hitchhiker’s Guide to the Galaxy.”
President Donald Trump nominated the 49-year-old Gorsuch for the Supreme Court 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’ worth of opening statements Monday, the all-day hearing Tuesday 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 stern.
Gorsuch repeatedly cited his respect for precedent, his open mind and his 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?’ asked Sen. Dianne Feinstein, D-Calif., 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 “plenty” of cases, and he cited a string of examples from what he called a “long, long list.” In a 2015 decision, for instance, Gorsuch 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.”
Gorsuch noted 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 precedent, including the still-controversial 1973 Roe v. Wade decision upholding a woman’s right to an abortion.
“It has been reaffirmed many times,” Gorsuch acknowledged.
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.”
When I became a judge, they gave me a gavel, not a rubber stamp.
Judge Neil Gorsuch
The senior Democrat on the Senate Judiciary Committee, Feinstein led off her party’s questioning in an alternating round in which 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.
An unabashed admirer of Scalia, Gorsuch would effectively retain the court’s prior ideological balance if he is confirmed. Cornyn, a former judge on the Texas Supreme Court, and Cruz gave Gorsuch an opportunity to discuss the notions of “originalism” and “textualism,” with which Scalia was often associated.
“I do think when we’re interpreting the law, we have no better place to start than the text,” Gorsuch said, echoing Scalia’s perspective.
Though still a relatively junior member of the Judiciary Committee, Cruz has had a closer, and at times testier, relationship to the Supreme Court than more senior members. Following his graduation from Harvard Law School, Cruz clerked for the late Chief Justice William Rehnquist. As Texas solicitor general, he argued nine cases before the high court.
As a presidential candidate, Cruz denounced Supreme Court justices as “unelected lawyers” and offered a constitutional amendment to require retention elections for the justices.
On Tuesday, he lobbed Gorsuch ample opportunities to tell droll stories from his own time as a Supreme Court clerk but then turned more thoughtful in urging the nominee to discuss as well the intersection of the Constitution with modern technology.
“No one is looking to take this back to the horse-and-buggy days,” Gorsuch said. “The point is to apply the law in a way that allows us to say as judges, ‘It’s not what we would choose, it’s what the law was understood to mean.”
Republicans enjoy an 11-9 advantage on the Judiciary panel, guaranteeing Gorsuch will pass successfully through the committee, perhaps before the Senate’s Easter recess. Before he does, he will have to answer additional written questions from committee members.
If some Senate Democrats follow through on their threat to filibuster, Gorsuch will then need 60 votes to proceed on the Senate floor. The 52 Senate Republicans would need to peel off eight Democrats to break a filibuster and obtain an up-or-down vote. Failing that, GOP lawmakers 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 re-election in 2018. 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,” Sen. Lindsey Graham, R-S.C., said of Trump’s first selection. “Maybe somebody on TV.”