Polished and scrutinized to a fare-thee-well, Colorado-based appellate Judge Neil Gorsuch has political momentum as he enters his Supreme Court confirmation hearing starting Monday.
Absent any last-minute plot twist, Gorsuch appears poised to fill the seat kept vacant by Senate Republicans during the final 10 months of the Obama administration. Even some Democrats still furious over the GOP power play are quietly forecasting Gorsuch’s eventual success.
“It has, indeed, been smooth and well-executed, largely because he’s such an appealing candidate,” Jeffrey Rosen, president and chief executive officer of the National Constitution Center, a congressionally chartered educational institution, said in an interview Friday. “He has strong bipartisan support in the legal community.”
Since his Jan. 31 nomination by President Donald Trump, Gorsuch has maneuvered throughout Capitol Hill without any apparent missteps. He’s met with upward of 70 senators and rehearsed disarming answers in private “murder boards.” He’s made public through the Senate Judiciary Committee more than 175,000 pages of his past writings, speeches and related documents
Conservative advocacy groups have been pumping out pro-Gorsuch ads, including some $4.4 million worth of radio, television and digital spots credited to the Judicial Crisis Network. A foundation affiliated with the National Rifle Association has fired off an additional $1 million or so in ads, further outgunning Gorsuch’s liberal opponents.
And in a deft move, Gorsuch showed independence without piercing any White House thin skins when a Democratic senator quoted him as calling Trump’s heated rhetorical assault on his fellow federal judges “demoralizing” and “disheartening.”
The outdoorsy 49-year-old graduate of Columbia, Harvard Law School and Oxford University, who esteems the late Justice Antonin Scalia, has, in brief, managed a textbook confirmation rollout while avoiding the chaos that has elsewhere roiled the nascent Trump administration. If confirmed, Gorsuch would fill Scalia’s seat.
“We’re gonna confirm him before the April recess,” Senate Majority Leader Mitch McConnell, R-Ky., assured Politico reporters on March 9. The recess is scheduled to begin April 7.
Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure.
Judge Neil Gorsuch
The Senate’s 52 Republicans appear to be in lockstep behind Gorsuch. To overcome a potential filibuster, as has already been threatened by Sen. Jeff Merkley, D-Ore., Republicans would have to peel away eight Democrats. That would not be impossible, as some politically vulnerable and/or institution-minded lawmakers will call for an up-or-down vote even if they ultimately oppose Gorsuch.
Led by Sen. Dianne Feinstein of California, the Judiciary Committee’s senior Democrat, skeptical lawmakers will nonetheless do their best to shake Gorsuch, who will be present for opening statements Monday and a full day of direct questioning Tuesday.
Wednesday, once the Gorsuch questions are expected to be done, could feature outside witnesses, including those summoned by Democrats to personify the impact of Gorsuch’s past decisions. The hearings are expected to end Thursday.
“Judge Gorsuch ruled against Patricia Caplinger, from Missouri, who sued after a medical device was implanted in a non-FDA approved way,” Sen. Chuck Schumer of New York, the Senate minority leader, said in one characteristic tweet on March 16.
Joined by a fellow Republican appointee on the 10th U.S. Circuit Court of Appeals and opposed in part by a Democratic appointee, Gorsuch reasoned in the April 2015 decision involving Caplinger that Congress had effectively pre-empted state laws governing medical devices.
“Allowing more regulation of medical devices could yield benefits for patient safety,” Gorsuch wrote. “But it could also mean forcing manufacturers to abide not one but 51 sets of requirements, a prospect that could deter or delay access to innovative devices and wind up hurting more patients than it helps.”
Written with his customary accessible clarity, Gorsuch’s opinion in the Caplinger case was one of hundreds he has authored since he joined the bench as a President George W. Bush appointee in 2006.
The opinions confirm that Gorsuch is conservative; a point cheered by Tea Party Patriots and FreedomWorks activists who rallied on Capitol Hill the Friday afternoon before the hearing.
In one of his most visible decisions since the Senate confirmed him as an appellate judge by voice vote in 2006, Gorsuch sided in 2013 with the company Hobby Lobby in its effort to avoid, on religious grounds, complying with the Affordable Care Act’s so-called “contraception mandate,” which required health insurance plans to cover contraceptives. The Supreme Court, in a 5-4 decision, later sided with Hobby Lobby as well.
More broadly, Gorsuch follows Scalia’s strict adherence to constitutional and statutory text as a role model.
“Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch said in a 2016 lecture. “To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society.”
Judges, Gorsuch went on to say, should “apply the law as it is, focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
This hasn’t always meant thumbs-down for the little guy, nor is Gorsuch himself entirely a Scalia clone. Rosen, of the National Constitution Center, who clerked on an appellate court with Gorsuch, said that while Scalia could be “acerbic,” Gorsuch was “an incredibly nice guy, warm and friendly.”
At the same time, his extensive paper trail is largely devoid of significant decisions involving the hot-button social issues that can galvanize politicians and advocacy groups, including affirmative action and gun rights.