Judge Neil Gorsuch moved smoothly through his Supreme Court confirmation hearing Tuesday, easily fending off Democratic attacks while enjoying the vocal support of GOP lawmakers like Sen. Thom Tillis, R-N.C.
“I like your track record on the bench,” Tillis told Gorsuch on Tuesday night.
As the second-most junior Repuublican member of the Senate Judiciary Committee, Tillis had to wait more than 10 hours before he could start in on his own 30-minute round of questions. At that point, about 8 p.m., most of the hot topics had seemingly been exhausted and the hearing was starting to resemble an endurance test.
One of the judiciary committee’s non-lawyers, Tillis spent much of his time denouncing Democratic “absurdity” and reciting the facts of cases involving issues including campaign finance restrictions. He asked few actual questions of the nominee for a lifetime seat on the nation’s highest court.
President Donald Trump nominated the 49-year-old Gorsuch for the seat formerly held by the late Justice Antonin Scalia, who passed away in February 2016. Gorsuch currently serves on the Denver-based 10th U.S. Circuit of Appeals.
Following four hours’ worth of opening statements Monday, the all-day and into-the-night hearing Tuesday offered lawmakers their first opportunity to question Gorsuch in public. Flavoring his answers with the occasional “gosh” and “golly” and references to “Sister Mary Rose Margaret, (who) taught me how to read,” the silver-haired Colorado native kept his cool though his tone at times edged toward being stern.
While he may not have won any converts, the Columbia, Harvard Law School and Oxford graduate appeared to more than hold his own.
When I became a judge, they gave me a gavel, not a rubber stamp.
Judge Neil Gorsuch.
“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?’ asked Sen. Dianne Feinstein, D-Calif., the committee’s top Democrat, underscoring one line of attack. “I’m just looking for something that would indicate that you would give a worker a fair shot. Maybe it’s in your background somewhere that I don’t know about.”
Gorsuch countered that he has ruled “for the little guy as well as the big guy” in many cases, and cited a string of examples from what he called a “long, long list.” In a 2015 decision, for instance, Gorsuch sided with Colorado residents in a long-running class-action lawsuit claiming they were harmed by waste from the nearby Rocky Flats nuclear weapons plant.
“I’m a fair judge,” Gorsuch said.
Feinstein led off her party’s questioning in an alternating round in which Republicans largely tossed softballs and individual Democrats used their allotted 30 minutes to attack. Repeatedly, Democrats cited Senate Republicans’ refusal last year to consider President Barack Obama’s nominee, Judge Merrick Garland.
Citing his need to steer clear of politics, Gorsuch declined to comment on the GOP’s power play or on what Sen. Sheldon Whitehouse, D-R.I., characterized as the millions of dollars spent by conservative groups in support of his nomination. Noting that the issue is “currently being litigated actively,” Gorsuch declined as well to discuss the Trump travel ban targeting six mostly Muslim countries.
Casting himself as part of the judicial mainstream, Gorsuch noted that he has participated in some 2,700 cases during his decade as an appellate judge, and that in 97 percent of them the ruling was unanimous. He repeatedly pledged his respect for precedent, including the still-controversial 1973 Roe v. Wade decision upholding a woman’s right to an abortion.
“It has been reaffirmed many times,” Gorsuch acknowledged
As a candidate, Trump pledged to appoint pro-life judges but, as is customary, Gorsuch testified that Trump administration officials did not seek to pin him down about specific cases.
“I don’t believe in litmus tests for judges,” Gorsuch said, adding that “no one in that process asked me for any commitments, or any kinds of promises about how I’d rule in any kind of case.”
An unabashed admirer of Scalia, Gorsuch would effectively retain the court’s prior ideological balance if he is confirmed. Republican Sen. John Cornyn of Texas, a former judge on the Texas Supreme Court, gave Gorsuch an opportunity to discuss the notions of “originalism” and “textualism” with which Scalia was often associated.
“I do think when we’re interpreting the law, we have no better place to start than the text,” Gorsuch said, echoing Scalia’s perspective.
Feinsten, the former chair of the Senate Select Committee on Intelligence, now chaired by Sen. Richard Burr, N.C., pressed Gorsuch about his role in the George W. Bush administration’s Justice Department and the approval of harsh anti-terror techniques including waterboarding. Gorsuch’s critics have sought to link him to the subsequently discontinued detention and interrogation program.
“All I was was a lawyer for a client,” Gorsuch said, adding that the passage of time made some details difficult to recall.
Republicans enjoy an 11-9 advantage on the Judiciary panel, guaranteeing that Gorsuch will pass successfully through the committee, perhaps before the Senate’s Easter recess, which starts April 7. Before the vote, he will have to answer additional written questions from committee members.
If some Senate Democrats follow through on their threat to filibuster, 60 votes will be needed to cut off debate. The 52 Senate Republicans would need to convince eight Democrats to side with them to break a filibuster. Doing so would lead to an up-or-down vote on Gorsuch, who then would need 51 votes for confirmation.
If the GOP fails to get 60 to cut off debate, it could ram through a rules change prohibiting the use of a filibuster on Supreme Court nominations.
So far, though, Democratic leaders have not been enforcing party discipline on a filibuster, as they heed the needs of red-state lawmakers who face tough re-election prospects next year. Some may also counsel holding back ammunition to fire at the next Supreme Court nominee, who has the potential to more dramatically shift the court’s ideological balance than is likely under the Gorsuch-for-Scalia swap.
“Quite frankly, I was worried about who he would pick,” Graham said of Trump’s first selection. “Maybe somebody on TV.”