What we learned from Neil Gorsuch’s marathon confirmation hearing
In more than 11 hours of questioning Tuesday, Judge Neil Gorsuch defended his judicial record, philosophy and past work on Republican campaigns as he tried to stress his independence from outside influence, the importance of precedents and his unwillingness to wade into political crossfire. Democrats repeatedly pressed Gorsuch on Merrick Garland, whose nomination to the high court — by President Barack Obama — was not considered by the Senate. He also delivered a condemnation of ‘anyone’ who attacks the integrity of the judicial branch, a statement that many saw as a rebuke to President Donald Trump, drawing a response from the White House even before the day’s proceedings concluded. The marathon session in front of the Senate Judiciary Committee grew testy at times, especially when Gorsuch was pressed on specific cases or faced other scrutiny from Democrats on the panel.
Here are some highlights from Gorsuch’s testimony.
Less is more
One of the main lines of attack from Democrats focused on Gorsuch’s relationship to Mr. Trump, who vowed during the campaign to nominate a conservative who supports his positions on issues like abortion and gun control. Democrats used Trump’s rhetoric to question whether Gorsuch would act as a rubber stamp for the Trump administration’s agenda.
Gorsuch declined to say how he would rule on cases under litigation, such as the court challenges to Trump’s revised travel ban, which are widely expected to wind up at the Supreme Court. Gorsuch also declined to delve into controversial issues that have come before the court, or could come before the court in the future, like the campaign finance laws at the heart of the Citizens United decision.
Democrats grew increasingly frustrated with his strategy.
“You have provided us less about the way you would approach cases than previous nominees to the Supreme Court,” Sen. Mazie Hirono (D-Hawaii) said towards the end of the hearing.
Some court watchers agreed. “There was not a lot of substance, and that is something that the senators do expect,” Amy Howe, editor of the website Scotusblog.com, told PBS NewsHour’s Judy Woodruff in an interview Tuesday.
— PBS NewsHour (@NewsHour) March 21, 2017
Howe pointed to Gorsuch’s position on whether cameras should be allowed into the Supreme Court chamber. In response to a question from Sen. Amy Klobuchar (D-Minn.), Gorsuch said he had not thought about the issue long enough to develop an opinion. Other recent Supreme Court nominees have answered the question by saying they would be willing to consider the idea. But “Gorsuch wouldn’t even go that far,” Howe said. His response “was kind of surprising, given that it’s come up at the last few confirmation hearings.”
But if Gorsuch’s non-answers angered the Democrats on the panel, the Republicans seemed happy to play along, peppering the nominee with plenty of softball questions about his hobbies, childhood in Colorado and favorite books. They also gave Gorsuch numerous opportunities to expound on his judicial philosophy and love for the law. Given that every senator had a limited amount of time, the strategy of running down the clock paid off. For Gorsuch and the Republican senators backing his nomination, the less time spent answering difficult questions, the better.
When Gorsuch did take a position, it was often to defend his view that judges should interpret the law narrowly — a philosophy known as originalism that was popularized by the late Justice Antonin Scalia. Indeed, Tuesday’s hearing frequently devolved into a debate over originalism — and by extension, Scalia’s judicial legacy — with Democrats criticizing the approach and Republicans like Texas Sen. Ted Cruz defending it.
Gorsuch argued repeatedly that the approach was not a call to return to the days of the “horse and buggy” or the “quill pen.” He cited several recent cases in which the Supreme Court looked to the constitution to settle disputes about modern technology that did not exist at the time of the country’s founding. In laying out his positions Gorsuch displayed an impressive command of constitutional law.
— PBS NewsHour (@NewsHour) March 21, 2017
Still, Democrats took issue with Gorsuch’s approach to the law, arguing that conservative judges applied Scalia-style originalism to some issues but not to others — for instance, cases of abortion or same-sex marriage. At one point, Klobuchar called it “selective originalism.”
Senators also repeatedly questioned Gorsuch’s opinion in TransAm Trucking v. Dept. of Labor. The case involved trucker Alphonse Maddin, who while making a winter drive on an Illinois highway decided to unhitch the cab of his truck from his trailer and drive to safety when help was slow to arrive.
Gorsuch’s fellow judges on the case ruled in favor of Maddin. Gorsuch sided with the company, saying Maddin had not “refuse to operate a vehicle” out of safety concerns, which would have protected him under the law from being fired. The choice Maddin made, Gorsuch argued, was to operate the vehicle despite safety concerns by driving to a nearby gas station.
As other Democrats had before her, Hirono suggested Gorsuch interpreted that law too narrowly.
“If judges are going to work this hard to stretch the text of a law to undermine its purpose … I think that makes it pretty tough for any law Congress passes or will pass [to] really being effective in protecting American workers,” she said.
She also said she worried the decision, along with his opinions in other cases, suggested that Gorsuch leaned toward protecting corporate interests over individual rights. Or as was so often referenced on Tuesday, the “big guy,” over the “little guy.”
Travel ban: “The real question is, what’s the law?”
The hearing Tuesday also raised questions about how Gorsuch would rule in the ongoing legal dispute over President Trump’s immigration policy. Though Gorsuch refused to take a position on the issue, some legal experts wondered how Gorsuch would adapt his approach in the age of Trump. In a court challenge over Trump’s first immigration order, administration officials argued that the executive branch’s authority on national security issues was not subject to judicial review.
In response to questions about executive power, Gorsuch said Tuesday that “nobody is above the law in this country, and that includes the president of the United States.” Gorsuch later added that he would be an independent arbiter on the court. “I am no one’s rubber stamp,” he said.
— PBS NewsHour (@NewsHour) March 21, 2017
Pamela Karlan, a professor at Stanford Law School, said Gorsuch’s approach to the law would be tested by the Trump administration.
“When Judge Gorsuch says no man is above the law, the real question is, what’s the law?” Karlan, a former Justice Department official under President Obama, told PBS NewsHour’s Judy Woodruff in an interview.
Karlan added: “Does the constitution forbid the president from making xenophobic or religiously bigoted exclusions of people from the United States, or doesn’t it?”
Taking on Trump
Gorsuch kept a cool demeanor throughout most of the day. Yet at times he grew visibly impatient under questioning from Democrats. Sen. Al Franken (D-Minn.) seemed to get under the nominee’s skin after he read emails Gorsuch had sent to Republican operatives after the 2004 election. Gorsuch, who volunteered in Ohio for George W. Bush’s reelection campaign, was looking for work in the Bush administration (he eventually found a job in the Justice Department the following year). In the decade-old emails, Gorsuch came across as a savvy political insider, presenting a stark contrast to the apolitical, above-the-fray persona Gorsuch has cultivated since becoming a federal judge in 2006.
Gorsuch also appeared uncomfortable in an exchange with Sen. Richard Blumenthal (D-Conn.), who pressed him to publicly address Trump’s criticism of the courts last month. Gorsuch had done so in a private meeting with Blumenthal in February, saying he found Trump’s attacks on federal judges who had blocked his original travel ban “disheartening and demoralizing.”
Gorsuch initially demurred when Blumenthal asked him to repeat the assertion. But then, under pressure from Blumenthal, he relented, saying: “When anyone criticizes the honesty and integrity, the motivations, of a federal judge, I find that disheartening, I find that demoralizing.”
“Anyone, including the president of the United States?” Blumenthal asked.
“Anyone is anyone,” Gorsuch answered.
The White House responded hours later, claiming Gorsuch’s remarks were not aimed at the president. “Wrong and Misleading: he spoke broadly and never mentioned any person,” Sean Spicer, the White House press secretary wrote on Twitter. The dispute drew attention to Trump’s troubled relationship with the judicial branch, threatening to overshadow a day in which Gorsuch was supposed to be the main star.
Senators have another chance to question Gorsuch on Wednesday. Follow our live coverage here.