WASHINGTON – Judge Neil Gorsuch emphasized “the importance of an independent judiciary” on Monday in opening remarks to a Senate Judiciary Committee bitterly divided over his nomination to the Supreme Court.
“Under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes,” said Gorsuch, President Donald Trump’s pick to fill the high court vacancy created 13 months ago by the death of Justice Antonin Scalia.
Gorsuch, 49, who serves on the Denver-based 10th U.S. Circuit Court of Appeals, is a respected, highly credentialed and conservative judge with a legal philosophy akin to Scalia’s, who has spent 10 years on the federal bench. Democrats claimed that he’s found in favor of corporations over “the little guy” during that time, while Republicans credit him with an intelligent and straightforward approach of interpreting the law as it is, not as anyone would wish it to be.
Since Scalia’s death, the court has split 4 to 4 on a handful of cases. Gorsuch’s confirmation would generally restore the court’s 5-4 conservative tilt, although Justice Anthony Kennedy, for whom Gorsuch clerked, has joined the liberals on cases involving gay rights, abortion rights and race.
“These days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. If I thought that were true I’d hang up the robe. But I just don’t think that’s what a life in the law is about,” Gorsuch said.
Gorsuch delivered a very personal opening statement, speaking of his Western upbringing and his parents and grandparents, and choking up as he hugged his wife, Louise, of 20 years, and talked about their two daughters.
Gorsuch spoke to the Senate Judiciary Committee after hours of opening statements from senators revealed deep partisan divides between Democrats and Republicans on the panel. Democrats angrily condemned Republicans for refusing to act on Barack Obama’s nominee last year, while Republicans accused Democrats of trying to turn Gorsuch’s confirmation hearing into a referendum on the GOP president.
“The nominee before us today is not President Trump,” said Sen. Thom Tillis, R-N.C. “The nominee before us today is not Leader McConnell,” the Senate GOP leader, Mitch McConnell, who engineered the 10-month blockade of Obama’s court pick, Judge Merrick Garland, last year.
“So I hope this nomination hearing focuses on the one person before us,” Tillis said.
Democrats made clear that it wouldn’t.
Addressing Gorsuch, Sen. Dick Durbin repeated a comment by White House chief of staff Reince Priebus last month that Gorsuch “represents the type of judge that has the vision of Donald Trump.”
“I want to hear from you why Mr. Priebus would say that,” Durbin, D-Ill., said to Gorsuch. “Most Americans question whether we need a Supreme Court justice with the vision of Donald Trump.”
Democrats, under intense pressure from liberal base voters horrified by the Trump presidency, entered the hearings divided over how hard to fight Gorsuch’s nomination given that the mild-mannered jurist is no right-wing bomb thrower and is widely expected to win confirmation in the end, one way or another.
Seeming to acknowledge that the outcome was not in question, Durbin remarked to Gorsuch: “You’re going to have your hands full with this president. He’s going to keep you busy.”
In his opening statement, Committee Chairman Sen. Chuck Grassley alluded caustically to Democrats’ complaints about judicial independence in the Trump era. Gorsuch told several lawmakers privately that he was disheartened by Trump’s attacks on judges who ruled against him over his immigration ban, but that didn’t go far enough for Democrats.
“In recent months I’ve heard that ‘now more than ever’ we need a justice who is independent, and who respects the separation of powers,” the Iowa senator said. “Some of my colleagues seem to have rediscovered an appreciation for the need to confine each branch of government to its proper sphere.”
Several Democrats used their opening statements to emphasize the importance of judicial independence given Trump’s approach to the presidency.
“The president has gravely undermined it and that is why I believe you have a special responsibility here this week, which is to advocate and defend the independence of our judiciary against those kinds of attacks,” said Sen. Richard Blumenthal, D-Conn. “It isn’t enough to do it in the privacy of my office or our colleagues behind our closed doors. I really think our system requires and demands that you do it publicly and explicitly and directly.”
Several of the more liberal Senate Democrats have already announced plans to oppose Gorsuch and seek to block his nomination from coming to a final vote. But delay tactics by Democrats could lead McConnell to exercise procedural maneuvers of his own to eliminate the 60-vote filibuster threshold now in place for Supreme Court nominations, and with it any Democratic leverage to influence the next Supreme Court fight.
Republicans control the Senate 52-48. The filibuster rule when invoked requires 60 of the 100 votes to advance a bill or nomination, contrasted with the simple 51-vote majority that applies in most cases.
Gorsuch on Monday emphasized the need for judicial independence even as Trump castigates jurists who have ruled against him, while Democrats questioned whether he would rule against abortion rights and gun control while favoring corporations.
As Senate Judiciary Committee opened its confirmation hearing for Gorsuch, Republicans praised the conservative federal appeals court judge from Colorado as highly qualified for a lifetime appointment as a justice, with the ideological balance of the Supreme Court at stake.
Speaking publicly for the first time since Trump nominated him on Jan. 31, Gorsuch defended his record as judge in the face of criticism of his rulings by committee Democrats. Despite slim chances of blocking his nomination in the Republican-led Senate, Democrats raised questions about Gorsuch’s suitability for the court.
Gorsuch emphasized the need for “neutral and independent judges to apply the law in the people’s disputes” and warned against judicial overreach.
Committee Democrats noted that Gorsuch has the chance to join the court only because Senate Republicans last year refused to consider Democratic former President Obama’s nomination of federal appeals court Judge Garland.
“Our job is to determine whether Judge Gorsuch is a reasonable, mainstream conservative or is he not,” said the panel’s top Democrat, Dianne Feinstein.
Republican Grassley, the committee’s plain-spoken chairman, said the panel is likely to vote on the nomination on April 3, with the full Senate vote likely soon after. Gorsuch was set to give his opening statement later in the day and face questioning by senators on Tuesday.
Democratic Sen. Richard Blumenthal underscored the importance of judicial independence at a time when Trump has excoriated federal judges who have ruled against him on matters including his executive order, put on hold by courts, to block people from several Muslim-majority nations from entering the United States.
Blumenthal said it was not “idle speculation” to suggest the Supreme Court might be asked to enforce a subpoena against Trump, citing FBI Director James Comey’s testimony before Congress on Monday confirming an ongoing investigation into alleged collusion between Trump’s presidential campaign and Russia.
Republican Ted Cruz said there is no reason for Gorsuch to be questioned about Trump, noting that previous nominees have not had to speak about allegations made against the presidents who nominated them.
Democrats highlighted cases on which Gorsuch has ruled and questioned the influence of conservative interest groups in advising Trump on his selection. Gorsuch, a cool-headed and amiable jurist, sat quietly, sometimes smiling, nodding or taking written notes before getting to deliver his own statement.
Feinstein emphasized abortion in particular. Conservatives have long opposed the landmark 1973 ruling called Roe v. Wade in which the court found that a woman has a right under the U.S. Constitution to terminate a pregnancy. Feinstein called that ruling and others since then buttressing legalized abortion “super precedents” that deserve special deference.
Feinstein cited two Gorsuch legal opinions in which she said he “argued in favor of making it harder to convict felons who possess guns.”
Fellow Democrat Patrick Leahy said he was worried that Gorsuch’s conservative method of interpreting the Constitution “goes beyond being a philosophy and becomes an agenda” that is anti-abortion, anti-environment and pro-business.
“Will you allow the government to intrude on Americans’ personal privacy and freedoms? Will you elevate the rights of corporations over those of real people? Will you rubberstamp a president whose administration has asserted that executive power is not subject to judicial review?” Leahy said.
Gorsuch told the committee that in his decade on the bench, he has tried to treat all who come to court fairly and with respect.
“I have decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of nuclear waste pollution by corporations in Colorado,” he said. He also said he has ruled for disabled students, prisoners and workers alleging civil rights violations, and for illegal immigrants.
The hearing could go as long as four days, providing classic Washington political theater.
Many Democrats contend Trump’s party “stole” a Supreme Court seat by freezing out Garland.
“Your nomination is part of a Republican strategy to capture our judicial branch of government,” Sen. Durbin told Gorsuch. “That is why the Senate Republicans kept this Supreme Court seat vacant for more than a year and why they left 30 judicial nominees who had received bipartisan approval of this committee to die on the Senate calendar as President Obama left office.”
About 30 people in the audience wore red T-shirts emblazoned with #StopGorsuch.
The ideological leaning of the court could be pivotal in determining the outcome of a wide array of matters, including the death penalty, abortion, gun control, environmental regulations, transgender rights, voting rights, immigration, religious liberty, presidential powers and others.