A whole 13 months after the death of Justice Antonin Scalia left a vacancy on the Supreme Court, the Senate will hold confirmation hearings starting on Monday to probe the judge nominated to replace him.
But Senate Democrats cool to Neil Gorsuch hope to turn the hearings into as much a trial of President Trump’s respect for the judiciary and legal process as a challenge of Mr. Gorsuch’s conservative record on both the 10th US Circuit Court of Appeals and as a high-ranking official in the George W. Bush Justice Department.
Last week Democrats gave some idea of the cards they may play and what can be seen of their hand, suggesting that the hearings will not be a run-of-the-mill nomination process (as perhaps befits a not your run-of-the-mill presidency). Gorsuch will undoubtedly be asked his opinions about common social issues such as abortion and same-sex marriage, say court watchers. But they also expect Senate Democrats to poke and prod the judge with questions about his controversial opinions on executive power as well as his opposition to doctor-assisted suicide. All in all, it looks likely that there will be an effort to paint Gorsuch as a staunch conservative friendly to big business and a foe of the little guy.
Sen. Richard Blumenthal (D) of Connecticut, a member of the Judiciary Committee, said a central question of the hearings would be whether Gorsuch passed Mr. Trump’s “litmus test.” During the presidential campaign Trump pledged to nominate a judge with traditionally conservative credentials on issues like abortion and gun rights.
“It’s a fascinating process because clearly he has strengths in intellect and articulateness that make him an appealing candidate,” Mr. Blumenthal told The New York Times. “But – and it’s a big ‘but’ – what are his core beliefs?”
Senate Democrats are expected to have enough votes only to stall Gorsuch’s nomination, not block it. But some are eager to repay Republicans for their refusal to even meet with former President Obama’s nomination, Merrick Garland.
Still, the process Gorsuch will go through is an arduous one. After having met with 72 of the 100 senators this year, Gorsuch will go before the Senate Judiciary Committee on Monday, where he will listen to 10-minute statements from each of the 20 committee members before he delivers his own 10-minute opening statement. Over the course of the week, Gorsuch will face questions from the committee as well as listen to testimony from outside witnesses.
The full Senate will have the ultimate say on whether to give their “advice and consent” of Gorsuch to the president, the constitutional language for confirming his nomination. But the committee will have an important say in the question, recommending to the full senate whether it reports the nominee favorably, unfavorably or without recommendation. Of the 15 most recent nominations, 13 were reported favorably, Robert Bork (ultimately rejected by the Senate) was reported unfavorably in 1987, and Clarence Thomas was reported without recommendation in 1991 (but won confirmation anyway).
The trend Gorsuch will likely follow, says legal analysts, is to answer only as much as he must.
“Ever since Judge Robert Bork offered the Senate an honest account of his judicial philosophy in 1987 and watched it torpedo his chances, nominees have steadfastly refused to engage on controversial legal issues – insisting that they must avoid pre-judging cases by remaining silent about any significant issue that might conceivably come before the Court,” writes television journalist Jeff Greenfield for Politico. “Those nominees include Elena Kagan, the legal scholar who authored that 1995 jab at the process, and who notably lost her enthusiasm for revealing questions and answers when she was the one being questioned as a nominee.”
But Gorsuch could follow in the footsteps of Justice Kagan and Chief Justice John Roberts in turning on the charm and humor, writes NPR’s legal affairs correspondent Nina Totenberg – “unless nerves or something else get the better” of Gorsuch, she adds.
However, Gorsuch is expected to face tough questions about his past opinions and writings as well as his biography with the Justice Department. When Gorsuch was an appellate judge for the Denver federal court, one of his most controversial opinions involved the Hobby Lobby chain of craft stores. After the company challenged the federal law requiring for-profit corporations to provide health insurance plans that cover birth control, Gorsuch and a majority of the 10th Circuit Court of Appeals ruled Hobby Lobby had a religious right not to provide birth control coverage, an opinion a sharply divided Supreme Court upheld.
“This case is a tale of two statutes,” the Affordable Care Act and the Religious Freedom Restoration Act, wrote Gorsuch. The “tie-breaker,” he said, is the religious protection law because it is a “super-statute” that trumps others, except in special circumstances.
Gorsuch’s critics strongly disagree with this interpretation because they believe it will open the floodgates to other religious objections by individuals and corporations.
Gorsuch critics also cite his views on the Chevron deference, an idea carved out of the Supreme Court’s 1984 ruling in Chevron v. NRDC that says courts should rely on experts at federal agencies to decide outstanding legal questions that exist within the vagueness of laws. Gorsuch is part of a conservative movement that opposes this idea.
But some liberals and Democrats have warmed to Gorsuch, especially after he was reported to have criticized Trump over his regard for the judiciary. After Trump attacked a federal judge’s decision in January via Twitter, Gorsuch was reported to have told Senator Blumenthal the president’s comments were “disheartening” and “demoralizing,” though he declined to speak publicly about it, the Monitor previously reported.
“With those two words, Judge Gorsuch appeared to be distancing himself from President Trump, carefully asserting his own independence and demonstrating a willingness to stand up to the man who nominated him,” wrote Harry Bruinius for The Christian Science Monitor. “Yet even before the saga over the meaning and original intent of the nominee’s words began to unfold on Thursday – with President Trump arguing that the media was misinterpreting his words – many liberals were already making this case for the deeply conservative jurist, calling Mr. Trump’s nominee one of the most independent-minded judges in the country.”
Gorsuch could also face questioning over a legal question that hasn’t received much mic time in the past – doctor-assisted suicide. Gorsuch wrote a 2006 book called “The Future of Assisted Suicide and Euthanasia” in which he lays out his arguments in opposition to giving those diagnosed with a terminal illness drugs to bring about their death. Sen. Dianne Feinstein of California, the ranking Democrat on the Senate Judiciary Committee, was a public supporter of her state’s End of Life Option Act.
A series of events last week leading up to the confirmation hearings also homed in on Gorsuch’s record of ruling against the little guy, a suggestion Gorsuch backers say is nitpicking, the Times reported.
When the nomination question comes to the full Senate, Republicans will need 60 votes to move to a vote. They have a 52-48 majority, but Senate Leader Mitch McConnell could employ “the nuclear option,” changing Senate rules to lower the vote threshold.
This report contains material from the Associated Press.