Judge Neil M. Gorsuch has performed like a major-leaguer throughout his marathon Supreme Court confirmation hearing this week, setting him up to claim next month the position formerly held by the late Justice Antonin Scalia.
During extended questioning that spanned both Tuesday and Wednesday, the 49-year-old Colorado native stayed civil, ducked beanballs and committed no unforced errors. While he’s frustrated the Democrats who’ve sought to pin him down on specific issues, the path ahead seems relatively uncluttered as the opposition party seems uncertain about strategy.
“I’ve gotten to know these guys pretty well over the last few weeks,” Gorsuch said Wednesday, sounding relaxed and pointing to the Senate Judiciary Committee’s Democrats. “Pretty nice folks.”
The full day of questions Wednesday, after an 11-hour session Tuesday and four hours of opening statements Monday, will be followed by Gorsuch answering written questions. On Thursday, lawmakers hear from four panels of witnesses ranging from American Bar Association leaders to University of North Carolina School of Law Professor William P. Marshall and Sandy Phillips, a resident of Boerne, Texas.
The ABA gave Gorsuch its highest rating of “well qualified.” Phillips is a gun-control advocate and mother of Jessica Ghawi, killed in the 2012 Aurora movie theater shooting in Colorado. Marshall is a critic of originalism, the judging philosophy often associated with Scalia and Gorsuch.
By contrast, the 1962 confirmation hearing for the late Justice Byron White, for whom Gorsuch clerked following his graduation from Harvard Law School, lasted about 90 minutes on a single day.
My job is to decide cases. I’m okay at that, on a good day.
Judge Neil Gorsuch.
Since 2006, Gorsuch has worked out of Denver’s Byron White U.S. Courthouse as a judge on the 10th U.S. Court of Appeals. During that time, he said he has participated in about 2,700 cases and has “been in the majority 99 percent of the time,” although senators this week focused on no more than half-a-dozen specific cases.
The hearing Wednesday in spacious Room 216 of the Hart Senate Office Building followed the same game plan as Tuesday’s. Republicans lobbed softballs or held forth on their own and Democrats sought without apparent success to pierce Gorsuch’s calm.
“The Democrats on the committee...tried to peel back your professional and carefully guarded persona so that we might understand whether there’s any chance there’s a beating heart and an independent streak in Donald Trump’s most important decision of his nascent presidency,” Sen. Dick Durbin, D-Ill., told Gorsuch.
Asked Tuesday about what’s ahead for Gorsuch, Senate Minority Leader Sen. Chuck Schumer of New York did not commit his colleagues, saying instead that “everyone’s being careful and waiting for the hearings.” Strategically, Democrats could choose to hold some resistance tools in reserve for the next Supreme Court nomination, which might shift the court’s balance more than the Gorsuch-for-Scalia swap.
If confirmed before the Senate’s Easter recess that starts April 7, as Senate Majority Leader Mitch McConnell has pledged, Gorsuch would theoretically be in a position to participate in the 13 cases currently set for oral argument in the last two weeks of April.
To get him there, the Senate Judiciary Committee could vote to advance Gorsuch’s nomination within a week or so. Republicans command the panel with an 11-9 majority.
All of the Senate’s 52 Republicans will vote for him, when it gets to that. If some Democrats follow through on their filibuster threat, GOP leaders will need to pull away eight Democrats to end debate and force the up-or-down majority vote that Republicans are guaranteed to win.
If a filibuster stays intact, Senate Republicans could change the rules to prohibit the practice for Supreme Court nominees. That, in turn, would escalate the partisan rancor of a confirmation process that has already shown, said Sen. Lindsey Graham, R-S.C., that “politics has changed, and changed in a fashion we should all be ashamed of as senators.”
“I think we’re doing great damage to the judiciary by politicizing every judicial nomination,” added Graham, one of the few GOP senators who voted for both of President Barack Obama’s successful Supreme Court nominees.
Graham cited Democrats’ fruitless efforts to tease out Gorsuch’s positions on various hot-button topics. Democrats, in turn, said they simply want to understand the nominee’s thinking.
“You have been very hesitant to even speak about Supreme Court precedents,” Sen. Patrick Leahy, D-Vt., told Gorsuch.
Gorsuch, for instance, declined Wednesday to answer Democratic Sen. Dianne Feinstein of California’s question, preceded by her recollections about her own late father’s suffering, about California’s “End of Life Option Act.” The state measure took effect last year, enabling adults diagnosed with a terminal disease to request an aid-in-dying drug from their attending physician.
As he had on other issues from abortion and gun control to campaign finance reform, Gorsuch insisted he didn’t want to pre-judge any controversy that might come before him. Instead, he spoke briefly about a book he wrote entitled “The Future of Assisted Suicide and Euthanasia,” as well as his own experience with dying family members.
“I’ve been there with my dad, and others,” Gorsuch told Feinstein, briefly pausing and closing his eyes. “And at some point you want to be left alone. Enough with the poking and the prodding.”