What to expect from Neil Gorsuch’s confirmation hearings


JUDY WOODRUFF: And back to the Supreme Court nominee now.

We want to take a closer look now at Judge Gorsuch from those who know him well and have studied his record closely.

Jeffrey Brown has this portrait.

READ MORE: Photos: Who is Neil Gorsuch?

PRESIDENT DONALD TRUMP: Today, I am keeping another promise to the American people.

JEFFREY BROWN: President Trump announced his pick in the East Room of the White House on January 31.

PRESIDENT DONALD TRUMP: He is the man of our country and a man who our country really needs and needs badly to ensure the rule of law and the rule of justice.

JEFFREY BROWN: And Americans had a first chance to meet Neil Gorsuch, his wife, Louise, at his side, a man who at age 49 could have a profound effect on the nation's laws, and political life, for decades to come.

NEIL GORSUCH, Supreme Court Nominee: Standing here in a house of history, and acutely aware of my own imperfections, I pledge that if I am confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country.

MICHAEL TRENT, Friend of Neil Gorsuch: He's very humble. If you met him in a crowd of people, he wouldn't be the person that stood out and tried to capture the most attention of the group. He would be the person that would listen and sort of wait for an opportunity to share his thoughts.

JEFFREY BROWN: Michael Trent has known Gorsuch since they were freshman in high school, and served as best man at his wedding. He's talked with his friend in recent days.

Where is his head at right now?

MICHAEL TRENT: It's very focused on preparing for the hearings. He wants to be sure that he gets it right. He wants to make sure that he puts his best foot forward.

JEFFREY BROWN: He also knows, of course, the politics of our time.

MICHAEL TRENT: I wish people would look past, you know, the rough-and-tumble bit of politics and what's going on in the press and look to the person that he is.

JEFFREY BROWN: Trent says Neil Gorsuch is a Coloradan through and through, a lover of the outdoors, fishing, hiking, and skiing. He was raised in Denver with two siblings, his mother a prominent Republican state legislator. She was tapped by Ronald Reagan as the first woman to head the EPA, bringing the family to Washington, D.C., when Neil was 14.

ANNE GORSUCH BURFORD, Former EPA Administrator: I did submit my resignation to the president of the United States, with regret, last night about 5:00.

JEFFREY BROWN: Anne Gorsuch Burford resigned in the wake of a congressional investigation into mismanagement of a hazardous waste program just 22 months into her tenure.

Politically conservative from an early age, Neil Gorsuch attended Columbia University, where he and friends started their own conservative paper called "The Federalist."

MICHAEL TRENT: I think probably what he saw at Columbia was one side being reported over and over again, and he wanted to provide another side.

JEFFREY BROWN: Even more than that, he wants to put a kind of conservative view into a liberal bastion. Right?

MICHAEL TRENT: Well, it was Columbia, I mean, you know New York City in the 1980s. The fact that he was ambitious enough to start his own paper and get his own thoughts out there, I think, speaks a lot to the type of person that he is.

I mean, a lot of people will go off and do wild things in college. And, you know, Neil basically took that opportunity to put his thoughts on paper and get them out there.

JEFFREY BROWN: Gorsuch attended Harvard Law School, and was a Marshall Scholar at Oxford, where he met his wife. He clerked for Supreme Court Justices Byron White and Anthony Kennedy, who remains a key player on the court today.

He spent 10 years in private practice, and one in the Justice Department under George W. Bush, who appointed Gorsuch, then just 38, to a seat on the 10th Circuit Court of Appeals, based in Denver.

You're not surprised that he's up for a Supreme Court nomination?

JAMIL JAFFER, Former Clerk: Well, actually, I'm shocked.


JAMIL JAFFER: Yes, to be honest with you, because he's such a down-to-earth guy. You just don't get that sense of, he's going to go try and run the world.

JEFFREY BROWN: Jamil Jaffer worked with Gorsuch at the law firm and later as his law clerk and has remained a friend. Jaffer now teaches at the Antonin Scalia Law School at George Mason University, named for the man who Neil Gorsuch may replace.

JAMIL JAFFER: One of the interesting things about Judge Gorsuch is that he really is a judge's judge.

JEFFREY BROWN: What does that mean, exactly?

JAMIL JAFFER: So he's not looking to get a particular outcome. He doesn't have a particular policy view that he wants to impose upon the law.

What it is, is it's applying the laws Congress wrote, applying the Constitution as the people who wrote it understood it, right, and not sort of going outside of those bounds. And so maybe that's a conservative philosophy, in the sense that it's originalist, it's textualist, in the mold of, I would say, Justice Scalia, but also very mainstream, in the sense that when you apply it to any given case, you're not going to necessarily like all the outcomes.

JEFFREY BROWN: OK, I understand it, but it also sounds a little maybe naive in the political context we're talking about, right?


JEFFREY BROWN: Scalia was a lightning rod on all kinds of social and all kinds of political issues.

JAMIL JAFFER: Don't get me wrong. I mean, Judge Gorsuch is certainly conservative. But I would say he's in the mainstream of conservatism. You're not going to get a liberal judge from President Donald Trump, right? That's not what he ran on.

But if you're looking for sort of a mainstream conservative, a judge's judge, somebody who's not going to go out of the way to either get to a conservative outcome or a liberal outcome, then you have got Neil Gorsuch.

JEFFREY BROWN: What is known of Neil Gorsuch's views? Among his early writings, a book on assisted suicide, arguing against the practice and for the inviolability of human life, and a "National Review" article, from before he became a judge, critical of liberals who — quote — "have become addicted to the courtroom, rather than elected leaders and the ballot box, as the primary means of effecting their social agenda."

In a prominent and contentious case, Judge Gorsuch sided with Hobby Lobby stores, which objected to a requirement under the Affordable Care Act that it provide contraception coverage. That decision was later upheld by the Supreme Court.

But he's also written on the needs of low-income litigants and prisoners, calling for more affordable legal services and better representation in death penalty cases.

Gorsuch was personally close to Justice Scalia. In a speech last year at Case Western Reserve, he spoke of being on the ski slope when he learned of Scalia's death.

NEIL GORSUCH: I immediately lost what breath I had left. And I'm not embarrassed to admit that I couldn't see the rest of the way down the mountain through the tears.

JEFFREY BROWN: He added this of their shared judicial philosophy.

NEIL GORSUCH: As Justice Scalia put it — and it rings true to me — if you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong.

NARRATOR: Neil Gorsuch is a family man, a conservative from Colorado.

JEFFREY BROWN: Conservatives and business groups like what they see.

NARRATOR: Why did he make it harder to hold Wall Street accountable or for women to get birth control?

JEFFREY BROWN: But liberals see a different picture, one in which Gorsuch could fall on the court's far right end of the spectrum.

ELIZABETH WYDRA, Constitutional Accountability Center: You know, it really doesn't matter whether he's a genial person or a great guy to go skiing with. I'm sure all of those things are true.

But what really matters is his record and whether he can be the independent justice that we really need on the Supreme Court to provide a check against potential overreach from the elective branches.

JEFFREY BROWN: Elizabeth Wydra, head of the Constitutional Accountability Center, a public interest law and advocacy group, says Donald Trump set out a clear litmus test, including a willingness to overturn Roe v. Wade. One can only assume, she told me, Gorsuch met the test.

ELIZABETH WYDRA: Certainly, we want our justices to look to the text and history of the Constitution, but what I'm concerned about is whether he looks to the text and history of the whole Constitution, including amendments that made our Constitution more equal, ensuring that people of all colors, men and women are treated equally as citizens.

JEFFREY BROWN: It almost sounds as though anybody that Trump would put forward, because he was very clear about what he wanted, right?

ELIZABETH WYDRA: I think this is where the hearing becomes very important. There is a big burden placed on Neil Gorsuch to come before the Senate Judiciary Committee and show that, despite the process by which he was picked, replete with litmus tests and high rhetoric from Donald Trump, Neil Gorsuch has the burden to show the Senate Judiciary Committee that he will be this fair, independent judge who will follow the law where it leads.

JEFFREY BROWN: Neil Gorsuch has spent recent weeks meeting with senators on both sides of the aisle and preparing for those hearings, a very public debate now under way.

From Washington, I'm Jeffrey Brown for the PBS NewsHour.

JUDY WOODRUFF: And we continue our look at the potential next Supreme Court justice, Neil Gorsuch, and the opening day of his confirmation hearings with NewsHour regular Marcia Coyle of "The National Law Journal." Tom Goldstein, he's founder of SCOTUSblog.com.

Pam Karlan, she's a professor of law at Stanford University who worked in the Justice Department during the Obama administration, and Paul Clement, a former solicitor general under President George W. Bush.

And we welcome all of you to the NewsHour.

Marcia, I'm going to start with you.

Overall takeaway from today's session?

MARCIA COYLE, The National Law Journal: Well, the first day usually is not all that substantive.

The hearing played out the way it has traditionally. The senators — each senator has an opening statement. Then there is an introduction of the nominee, and the nominee's opening statement. That did happen.

But what we gather from the first day is, we see where the concerns are on both sides, where the questioning may lead, what kind of difficulties the nominee may have in answering some of the questions.

On the Republican said today, we saw a lot of emphasis on Judge Gorsuch's qualifications. On the Democratic side, we saw specific concerns about opinions he has written in areas, certain areas such as workers' protection, whether he would give deference to agencies' rules. So, it's really a laying out of what's to come.

JUDY WOODRUFF: Paul Clement, what was your main takeaway today?

PAUL CLEMENT, Former U.S. Solicitor General: Well, I thought probably the single most interesting part of the hearing was Judge Gorsuch's own statement.

And I think what the American public saw was somebody who's very poised, very experienced — he's been a federal court of appeals judge for over 10 years — and I think somebody by kind of any conventional standard is qualified to be on the Supreme Court of the United States.

And so I think that will probably give us an indication. We will obviously see a lot more of Judge Gorsuch in tomorrow's hearings answering questions in the back and forth, but that was really the highlight for me.

JUDY WOODRUFF: And, Pam Karlan, again, we only heard just a moment or so from Judge Gorsuch himself today, but what was your main takeaway in terms of what we now know?

PAM KARLAN, Stanford Law School: Well, from Judge Gorsuch himself, he made this point — and you saw it in the clip — that in 97 percent of his cases below, the decision is unanimous.

That's totally different from what happens on the Supreme Court. The job of a judge and the job of a justice are very different, because justices are resolving the constitutional questions that divide us most.

And I think you got a sense from the senators that the senators, too, recognize that there are two very different constitutional visions at stake here.

JUDY WOODRUFF: Well, and I wanted to ask you about that, Paul — Tom Goldstein, because it struck me, he said, that's how we do it in the West. He said 97 percent of his — of the cases he decided on were unanimous. Even more were decided by — he was in the majority.

Does that tell us something about him or not?

TOM GOLDSTEIN, Founder, SCOTUSblog.com: It probably doesn't tell us as much about the outcomes in the cases, in the cases where there was a division.

When you get to the Supreme Court, the stakes are harder and the — higher, and the questions are harder. I don't think that there is any suggestion that you would really see Neil Gorsuch kind of assuming the mantle of the center of justice on the Supreme Court. Rather, he's going to fit the mold of the person that he's replacing, Justice Scalia. In all likelihood, he's going to be a solidly conservative judge.

JUDY WOODRUFF: And what did you hear today, Marcia, in terms of lines that you expect the Democrats — questioning, criticism that you expect the Democrats to …

MARCIA COYLE: Judy, I think every confirmation hearing, at least ones that I have covered, has something unique about it that drives the questioning.

And on the Democratic side today and what I think will drive a lot of the questioning is something that Senator Klobuchar said that sort of stayed with me. She said, basically, we can't evaluate your credentials in a legal cocoon. They have to be evaluated in the context of the era that we live in.

And for her and her colleagues, that context is pretty much what they believe the Trump administration has created. She talked about the president's criticisms of judges, the obstacles to voting, just a whole range of things that she feels he has to be measured against in terms of his independence.

So, I think we're going to see a lot of questioning that follows along those lines. One of the sort of unfortunate things, I think, of what the Senate did on the Garland nomination was that it pushed the Supreme Court into a very bitter election campaign.

And that resulted in both candidates having litmus tests for their judicial nominees.


MARCIA COYLE: And the fact that President Trump said that he would appoint someone who, for example, would overturn Roe v. Wade really creates a problem for Judge Gorsuch when he gets questioned about that, to prove his independence.

JUDY WOODRUFF: And, Paul Clement, how do you think that will affect his approach to this process for the next two days?

PAUL CLEMENT: Well, I think what I would anticipate is, he is going to be very careful about not compromising his ability to sit on cases if he gets confirmed.

So, I don't think there is going to be a dramatically different sort of willingness to answer questions compared to prior nominations. Now, that may be dissatisfying for some members of the committee, to be sure. But I think it's important. You don't want somebody getting confirmed, but then having to recuse themselves on all manner of cases because they essentially have gotten into the nitty-gritty of how they would decide cases.

So, I don't anticipate you will see any of that. I think a lot of the focus is going to be — you heard some of this in the senatorial statements today — big guy vs. little guy cases, religious liberty, because this Hobby Lobby case on the court of appeals was one of his more prominent cases.

But, in a way, it almost speaks volumes the cases that they're not talking about. He really did manage in 10 years not to decide cases in other hot-button areas. And I think that's probably going to be a little bit frustrating for some of the senators who are going to want to really dig in and engage on the substance.

JUDY WOODRUFF: And pick up on that, Pam Karlan.

Where can Democrats go in talking, in questioning Judge Gorsuch that will elicit some feel, some information about how he's going to judge, how he will rule as a Supreme Court justice if he's confirmed?

PAM KARLAN: Well, I think one of the places they can go is to talk about cases that have already been decided in areas of law that are quite fixed and ask him what he thinks about the way justices — prior justices went about thinking about those cases.

I will give you one example, which was, when the Supreme Court decided Brown against Board of Education, the case where the court held that de jure segregation in public schools was unconstitutional, they decided two things that day that I think the senators really should press him on.

One is, they decided that applied to the federal government as well through the Fifth Amendment. You can't read the Fifth Amendment, which was enacted in 1791, to suggest that those people who enacted it thought that it prohibited race discrimination. So, how do we get the right result there if you're a strict originalist?

The same thing with regard to the 14th Amendment. And Chief Justice's Warren's opinion for the court said, in trying to decide whether segregation in public schools is unconstitutional, we can't turn the clock back to 1868.

Does Judge Gorsuch think that's wrong? Would he have signed on to an opinion that said that? Or would he have taken the view that, for example, Justice Scalia gave in an interview to the "California Lawyer" magazine, where he said, you know, let's face it, the 14th Amendment, the Equal Protection Clause, really has very little to say about whether sex discrimination is unconstitutional.

So, I think he can be pressed on cases that aren't going to come before the court. But, quite candidly, I think, if he's anywhere as skillful as the four predecessor nominees, he will play rope-a-dope.

JUDY WOODRUFF: What do you — well, pick up on that, Tom Goldstein.

TOM GOLDSTEIN: Well, there are two kinds of nomination hearings.

One is where the nominee knows they have the votes. And there's one — the other where they don't. And Neil Gorsuch does. The Republicans have a majority in the Senate. There's no prospect that any Republican will vote against him.

So, all he has to do is just do no harm essentially. And so I expect he will say relatively little, because that's the commonsense things to do. And, as Paul indicates, he has a good reason to not get into details, because those issues might come in front of him.

The one thing I do think we saw today was that there wasn't a hint by the Democrats that they were going to attempt to filibuster the nomination and force the administration to get to and the nomination to get to 60 votes, or cause a change in the Senate rules.

They just seem to — the Democrats don't seem to have the energy and the strategy to lay down on the tracks over this nominee, because he seems to be within the mainstream of what you would expect from a Republican president.

JUDY WOODRUFF: Well, just to follow up on that, how much pressure is there on him to come across as so acceptable to the Democrats that they don't resort to…

TOM GOLDSTEIN: I don't think actually that much.

He does come across as a very commonsense guy, relatively plainspoken, very clear. He hasn't decided hot-button issues like abortion and affirmative action in extreme ways. And so all he has to do is just not give Democrats an excuse to caricature him as an extremist on the right, and then he's fine.

JUDY WOODRUFF: Well, we're going to be following it for the next two days. And we're going to have all four of you back.

Tom Goldstein, Marcia Coyle, Pam Karlan, Paul Clement, we thank you. And we look forward to seeing you back here tomorrow.




JUDY WOODRUFF: And, tomorrow morning, you can turn to our Web site and our social channels starting at 9:30 Eastern to watch continued live coverage of day two of the Gorsuch hearings. You can also find our live blog on — of news, commentary and analysis related to the confirmation proceedings.

That's at pbs.org/newshour.

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