Did senators get enough substance on Gorsuch’s views?

It was an all-day interrogation for Supreme Court nominee Neil Gorsuch, who fended off Democratic efforts to ferret out his views on hot-button issues. Judy Woodruff takes a close look at the day’s proceedings with Marcia Coyle of the National Law Journal, Amy Howe of Scotusblog.com, Ilya Shapiro of the Cato Institute and Pam Karlan of Stanford Law School.

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    Now back to examination of the second day of Senate hearings to confirm federal Judge Neil Gorsuch to the Supreme Court.

    Joining me at the table today, PBS NewsHour Supreme Court analyst Marcia Coyle of "The National Law Journal," Amy Howe, editor of SCOTUSblog.com. Pam Karlan, she's a professor of law at Stanford University. She worked in the Justice Department during the Obama administration. And Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. It's a libertarian think tank.

    And we welcome all of you to the program. Thanks for being here.

    Let's take a look first at just a couple of the exchanges that came this morning, starting with a question from the chairman of the Judiciary Committee, Senator Chuck Grassley.


    Tell us whether you would have any trouble ruling against a president who appointed you.

  • NEIL GORSUCH, Supreme Court Nominee:

    That's a softball, Mr. Chairman. I have no difficulty ruling against or for any party, other than based on what the law and the facts in the particular case require.

    I'm heartened by the support I have received from people who recognize that there's no such thing as a Republican judge or a Democratic judge. We just have judges in this country.


    President Trump and others have said you are the next Scalia. So, I think it's only fair to ask you, do you disagree with any of the majority opinions that Judge Scalia joined in these cases?


    If I indicate my agreement or disagreement with a past precedent of the United States Supreme Court, I'm doing two things that worry me, sitting here. The first thing I'm doing is, I'm signaling to future litigants that I can't be a fair judge in their case.


    Then 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?


    So, what I think can give you comfort in this area is, Senator, I know a case or two has been mentioned yesterday. Respectfully, I suggest that doesn't represent the body of my work.

    I have written 2,700 — I participated in 2,700 opinions over 10.5 years. And if you want cases where I have ruled for the little guy, as well as the big guy, there are plenty of them, Senator.


    President Trump promised a Muslim ban. He still has on his Web site to this day — he's called for a total and complete shutdown of Muslims entering the United States.

    And a Republican congressman recently said the best thing the president could do for his Muslim ban is to make sure he has Gorsuch on the Supreme Court before the appeals get to that point.


    Senator, a lot of people say a lot of silly things.


    Well, that's more than silly. That's a — he wants — this congressman wants you on the court so they can uphold a Muslim ban.


    Senator, he has no idea how I would rule in that case. And, Senator, I am not going to say anything here that would give anybody any idea how I would rule in any case like that that could come before the Supreme Court or my court of the 10th Circuit.

    It would be grossly improper of a judge to do that. It would be a violation of the separation of powers and judicial independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they would rule in a case that's currently pending and likely to way its way to the Supreme Court.


    Are — the president's national security determinations, are those reviewable by the court?


    Senator, no man is above the law.


    Those are just a few excerpts. Those were mainly this morning. There are more we're going to show you in just a minute.

    But let's talk about what we just saw. And we want to remind our viewers that these hearings are still going on. They're expected to go into the evening tonight here in Washington.

    Marcia Coyle, first, we heard Judge Gorsuch say, I have — he has no idea how he would rule in that case. And he is basically saying to these senators, I'm not going to tell you how I'm going to do, what I'm going to think about any case.

    Was he successful in really not sharing that kind of information?

  • MARCIA COYLE, The National Law Journal:

    Well, I think the senators are accustomed to hearing that from Supreme Court nominees. That is a very common response to questions about particular cases that might come before the Supreme Court or older decisions of the Supreme Court.

    But, Judy, the thing I took away from the early exchange is the emphasis in the questions and in the defense by Republicans of the judge's independence from President Trump.

    And this is a burden for Judge Gorsuch. And I think it's entirely of President Trump's creation, based on his speech in the campaign that he would appoint judges who would overrule Roe v. Wade, as well as his criticism of federal judges.

    So, I think the question — to me, that was a dominant theme on both sides, one, the Democrats trying to show he may not be independent, and the Republicans buttressing his independence.


    Ilya Shapiro with the Cato Institute, is that how you heard what was going on today?

  • ILYA SHAPIRO, Cato Institute:

    Well, I think he did a good job in rebutting any charges that he was a stooge of President Trump of some sort.

    I'm not sure what a Trumpian or a populist kind of judge would be. I mean, he was straight from Federalist Society central casting. I'm a card-carrying member of that so-called far-right extremist organization, as some senators called it, by the way.

    And so I think it's not going to stick to the wall, trying to call him an associate with some of the more controversial pronouncements of the president.


    Pam Karlan, same question. Were these senators able to pin Judge Gorsuch in one direction or another today?

  • PAM KARLAN, Stanford Law School:

    Well, I think there was one place — and this is kind of interesting, given your excerpt — where he did give an indication, because having said to Senator Feinstein that he wouldn't say anything about which opinions he agreed with or not, he then went out of his way several times to praise Justice Scalia's opinion in a case called United States against Jones about GPS devices on cars.

    And he said, well, you know, the principles of the Fourth Amendment don't change, but technology does. What's interesting here is, the question, as Senator Klobuchar kind of made clear in her questioning is, well, what else changes?

    Because if Judge Gorsuch can say the Fourth Amendment carries through, even though James Madison didn't know about DNA or GPS, what about the fact that the framers didn't know about the fact that gay people can have loving relationships the same way straight people can?

    And when Judge Gorsuch says, no man is above the law, the real question is, what's the law? Does the Constitution prohibit the president from making xenophobic or religiously bigots exclusions of people from the United States, or doesn't it?

    So, saying no man is above the law doesn't answer the question of what the law is. And I think that's the stake of what's going on today in the hearings.


    Amy Howe with SCOTUSblog, so, what did you pick up from all this?

  • AMY HOWE, SCOTUSblog.com:

    As Marcia said, I mean, there wasn't a lot of substance. And, again, that's something that the senators do expect.

    And that carried over even to some other areas where we have gotten some substantive responses from nominees in the past. Senator Amy Klobuchar of Minnesota asked Judge Gorsuch about his views on cameras in the courtroom.

    And, normally, what we have gotten from the last few nominees is, you know, something along the lines of, well, that sounds interesting. Of course, I would have to talk to my colleagues about it once I was on the Supreme Court, if I were fortunate enough to be appointed.

    And Gorsuch wouldn't even go that far. He said that he hadn't really thought about it, which was kind of surprising, given that it has come up at the last few confirmation hearings.


    And he said he was open to it, but he wouldn't — he certainly wouldn't commit in either direction.

    Marcia, back to you. On the — when Senator Leahy was trying to get him to talk about the travel ban, the notion, comments that President Trump made during the campaign about whether he would — whether people who were Muslim should be banned and trying to tie it to what's happened more recently, you spoke earlier about this effort to figure out how independent he is from the president.




    Was he successful, do you think, in persuading these senators that he is his own man?


    Well, I think, probably, a number of senators have already made up their minds about Judge Gorsuch and how they're going to vote or not vote for him.

    I think Judge Gorsuch did the best he could in terms of answering the questions. Senator Leahy also did the best he could to get him to respond to even broad questions, like, is a religious test constitutional under the First Amendment?

    He tried a back-door way, a front-door way. And it ultimately — the judge would only talk in broad terms, and finally said, it seems to me the facts that you're giving sound very much like cases that are now pending around the country, meaning the travel ban. And so he wasn't going to tip his hand on that.

    But you're right. This all has to do with independence. And I can tell you, Judy, I have never seen in recent Supreme Court confirmation hearings so much emphasis on trying to find out if a nominee is independent of the appointing president.


    Well, let's listen to two other excerpts. Now, these came this afternoon.

    They begin with Rhode Island Democratic Senator Sheldon Whitehouse, raised the question of so-called dark money. This is money in the political campaigns in American politics that is spent anonymously. We don't know who is giving the money. That's how that exchange started. And then you will hear another one.


    Now, we have this $10 million that is being spent on behalf of your confirmation. Do you think, for instance, that we on this panel ought to know who is behind that?


    Senator, that's a policy question for this body. And there's ample room for this body to pass disclosure laws for dark money or anything else it wishes to. It can be tested in the courts. So, Senator, with all respect, the ball is in your court.


    Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort, and we don't know who is behind it?


    Senator, there is a lot about the confirmation process today that I regret. A lot.




    A lot.

    When Byron White sat here, it was 90 minutes. He was through this body in two weeks. And he smoked cigarettes while he gave his testimony. There is a great deal about this process I regret. I regret putting my family through this.


    But to my question?


    Senator, the fact of the matter is, it is what it is, and it's this body that makes the laws. And if you wish to have more disclosure, pass a law, and a judge will enforce it, Senator.

  • SEN. AL FRANKEN, D-Minn.:

    Well, let's think back to 2004 election. Let's look at Ohio, where you volunteered. Ohio is one of 11 states in 2004 where Republicans working to support the reelection campaign also worked to put anti-gay marriage amendments on the ballot. Now, you were a campaign worker in Ohio. You were a member of the group Lawyers for Bush/Cheney.

    As a lawyer and as a student of the Constitution, how did you feel about the right the marry being put to a popular vote?


    Senator, I don't recall any involvement in that issue during that campaign. I remember going to Ohio.


    Were you aware of that issue at all?


    Oh, certainly I was aware of it.


    And how did you feel about it?


    Senator, my personal views — any revelation of my personal views about this matter would indicate to people how I might rule as a judge, mistakenly, but it might. And I have to be concerned about that.


    And I want to come right out of that to Ilya Shapiro and say, the Democratic senators made a point of noting that Judge Gorsuch has worked in the past in Republican political campaigns.

    Does that have an effect, should it have any effect on how senators consider these nominees?


    I don't think that's unusual.

    Justice Kagan, for example, during her hearing, it came up how she worked from her college days all the way through the Clinton White House in very political roles. She wrote an article in my former newspaper, The Daily Princetonian, about her experiences in a congressional race. And that's not disqualifying.

    In fact, it would be odd for someone who wants to be involved in public life to never have expressed any sort of political views or acted on some firmly held beliefs.


    What about that, Pam Karlan, and then, of course, going on to note that the judge declined to say anything about what he remembered about the role of gay rights being on the ballot in that Ohio campaign back in 2004?


    Well, the thing is, everybody who is nominated to the Supreme Court gives exactly the same kinds of answers to those questions.

    But we all recognize that the justices are going to differ when those issues come up to the Supreme Court. And so the real question is, how do they go about thinking about those issues? And I think Senator Klobuchar made a major effort to get Judge Gorsuch to talk about originalism.

    And he was willing to talk about it when it came to technology, and say that technology had changed. So, for example, movies are now protected, even though there were no movies in 1789, and GPS devices are — on cars constitute a search because they would be a trespass in 1789.

    But he didn't recognize, for example, that society changes in the same way. And I thought it was really quite striking that he admits that the word he and his in the Constitution now include women, but he doesn't seem interested or willing in talking about those issues when they don't involve the kinds of claims that movement conservatives have raised in the past.

    She also made another point that I just want to kind of get out there, and that is that Judge Gorsuch a number of times in some of the cases that he likes the highlight as his more liberal or little guy decisions then goes on after the narrow pro-little guy ruling to put in these concurrences the kind of hints where he might want to go if he were on the Supreme Court.

    And he said, well, I'm just kind of raising my hand to show my bosses what questions are out there.

    It's really educational what those questions are, because one of the ones that he's raised is whether campaign contributions should be subject to the same kind of strict scrutiny under the First Amendment that other forms of spending get. And that's a really big issue, because…



    I just want to interrupt, because I do want to get to — I think that's an interesting point that you raise.

    And, Amy Howe, did we learn something about that from him today?


    He — as Pam said, he really sort of talked about it in terms of, well, it's not my job to decide this issue. I can't overrule the Chevron case, the idea that you should defer to an agency's determination, but I wanted to flag it for my bosses.

    And on the point about politics, I think there was a little Democrats trying to have their cake and eat it, too, here, because, on the one hand, one of the Democratic senators was lamenting that there wouldn't be anyone on the Supreme Court who held public office.

    And, on the other hand, Senator Al Franken was essentially accusing Judge Gorsuch of having been involved in politics in the context of talking about Judge Garland, because Judge Gorsuch such put off questions about Judge Garland earlier with a sentence about, well, that's politics, and I don't get involved in politics.


    Who was President Obama's nominee — Who was President Obama's…


    You know, his one campaign finance case that he was on was a unanimous decision written by an Obama appointee.

    So, I don't think — you know, it just goes into, he really does a good job of reading the cases before him; 97 percent of them were unanimous. I think he had fewer dissents from his opinions than his colleagues on the 10th Circuit.


    And yet, Marcia, you have pointed out that it's different on an appellate court than it is at the Supreme Court.


    It is.

    And I think this is really hard stuff to get across in a Senate hearing. Senator Franken's question, especially about LGBT, same-sex marriage, he couldn't say, well, you know, how does an originalist view this, and would you have been with Justice Scalia in dissent on those cases that broaden the rights?

    It's just very hard, so he had to go in a backward sort of way to try to see what the judge was thinking. In fact, at one point, Judge Gorsuch sort of criticized one of the senators for picking one case to show he was against the little guy.

    He said, if you're going to pick and choose cases, well, I can pick and choose cases that show I'm for the little guy.

    But the senators said, we pick and choose because we're trying to find out who you are.

    And this is what they have got. They have got to hone in on things like that.


    And, Pam Karlan, speaking of who he is, I thought he showed more personality, I think, than we expected to see today, and I guess a little bit yesterday. There was humor. There was a sort of jockeying with the senators a little bit.

    But just quickly, I want to get each one of you. We only have about a minute. Do you think the senators did the job they needed to do today to pull out of him what they should? I want to ask you each in 10 or 15 seconds.


    Well, I can do it in one second. No.



    All right. That calls for a follow-up tomorrow.

    Amy Howe?


    I think they did. I think it was a little subdued in the first — the morning, but I think that Senators Whitehouse, Klobuchar and Franken in particular tried to really talk substance with him.


    What do you think, Ilya?


    I think there wasn't that much here that we didn't already know, if you had already been doing your homework and reading his opinions beforehand.

    I doubt this hearing will change anybody's vote on either the filibuster or the nomination side. But, hopefully, it educates the public about the sorts of issues that senators and judges deal with.




    That's — the last point is what I agree with. I think they did the job they had to do in order to lay out for the American public what some of the concerns are with Judge Gorsuch's nomination.


    All right. You all were terrific. And we have got more hearings tomorrow. Witnesses will be testifying.

    Amy Howe, Ilya Shapiro, Marcia Coyle, Pam Karlan, thank you all.


    And tomorrow morning, you can turn to our Web site and our social media channels to watch continued live coverage of the Gorsuch hearings in its third day. You can also find our live blog of news, of commentary and analysis related to the confirmation proceedings.

    That's at pbs.org/newshour.

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