In theory, senators on the judiciary committee are supposed to leave their politics at the door as they decide whether a president’s pick for the Supreme Court is fit for the job.
But day two of Judge Neil Gorsuch’s multiday hearing was infused with politics. Democrats feel like his nomination comes at time when the independence between the executive and judicial branches may be threatened. Plus, they’re raging mad that President Barack Obama’s nominee to fill the late justice Antonin Scalia’s seat never got a hearing.
Republicans are pleased at the notion of replacing Scalia’s conservative mantle with the prospect of another reliable conservative vote.
In the end, Republicans have the ability to confirm Gorsuch even if they have to blow up the rest of the filibuster for nominees to do so. But if Tuesday’s hearing was any indication, Democrats are going to make the process as politically painful as possible. Here are four emerging takeaways from the hearing:
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1. Republicans want to prove Gorsuch is not beholden to President Donald Trump
Rarely has there been such a demand that a Supreme Court nominee declare his independence from the president who picked him, says The Washington Post’s Supreme Court reporter Robert Barnes.
That’s partly because on Monday, FBI Director James Comey confirmed Trump’s associates are under investigation for any potential illegal ties to Russia during the election, as Russia was meddling in the U.S. election.
And Trump’s repeated criticism of judges who rule in a way he doesn’t like hasn’t made life easy for Senate Republicans trying to emphasize Gorsuch’s independence.
(Gorsuch said last month behind closed doors that Trump’s attack on a judge who froze his travel ban as “demoralizing.”)
Top Senate Republicans on the judiciary committee repeatedly gave Gorsuch a chance to distance himself from Trump.
“Would you have any trouble ruling against a president who would appoint you?” Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, directly asked Gorsuch in the first few minutes of the hearing.
“That’s a softball,” Gorsuch responded. “I have no difficulty ruling against any party based on what the law and the facts of the particular case requires.”
The next Republican up for questioning, Sen. Orrin Hatch, R-Utah, asked Gorsuch to again respond to criticism he’s not independent of Trump.
Gorsuch replied: “A good judge doesn’t give a wit about politics or the political implications of his or her decision, besides where the law takes him or her, fearlessly.” He added: “There is no such thing as a Democratic or Republican judge.”
“No man is above the law,” Gorsuch would go on to say several times.
2. Democrats are divided on their tact of opposition
Among various criticisms Democrats are trying to pin on Gorsuch:
A) As a lawyer, he defended Bush-era terror policies: Early on, Sen. Dianne Feinstein, D-Calif., tried to push him on his work defending the George W. Bush administration in lawsuits over terrorism and interrogation.
Gorsuch assured Feinstein he did not advocate to allow the president to waterboard despite a law preventing him.
B) Trump promised to appoint an antiabortion judge: Which suggests to Democrats that Gorsuch might overturn one of the most sacrosanct Supreme Court rulings in liberal circles: Roe v. Wade, upholding the legality of abortion.
Gorsuch replied it wouldn’t be fair for future litigants for him to share his opinion on cases past, present or future. All he could say is that precedent matters.
Gorsuch: “I have offered no promises on how I’d rule on any case to anyone and I don’t think it’d be appropriate for a judge to do so.”
C) Gorsuch may be a far-right conservative with a record of supporting big business: Feinstein pressed Gorsuch on whether he’d uphold workers’ rights, citing cases where she felt Gorsuch ruled in favor of large corporations. (The Washington Post’s Robert Barnes says the Case of the Frozen Trucker – where Gorsuch was the lone dissenter in a case against a driver who claimed he’d been wrongly fired for seeking heat in subzero temperatures – is one of those.)
Gorsuch answered back that he’s ruled “plenty” of times on the side of the smaller litigant – in favor of an officer in a pregnancy discrimination dispute, or of women harassed by a college football team, for example.
Asking how Gorsuch might vote particularly prickled Senate Republicans. After Feinstein’s 30 minutes drilling Gorsuch, Chairman Grassley paused to enter a Wall Street Journal editorial into the record that reads: “Democrats have come up empty trying to find something scandalous that Neil Gorsuch has said, so now they’re blaming him for what he won’t say.”
3. Merrick Garland, Merrick Garland, Merrick Garland
Senate Republicans held off on considering President Barack Obama’s pick, Garland, gambling that they’d win the presidency in November and could replace Scalia.
“If Republicans had followed the Constitution,” said Sen. Patrick Leahy, D-Vt., a senior member of the Democratic caucus, “Chief Judge Merrick Garland would be on the Supreme Court.”
“Your nomination is part of a Republican strategy to capture our judicial branch of government,” Sen. Richard Durbin, D-Ill., said in his opening statement Monday.
One Democratic senator (who is not on the Senate committee vetting Gorsuch) went so far as to accuse Republicans of stealing the seat.
The standoff could lead to a historic filibuster of Gorsuch requiring 60 votes to get him confirmed, which in turn would force Republicans into a very difficult choice: Gorsuch, or preserving what’s left of the filibuster for nominees. All indications are they’d choose Gorsuch.
4. Gorsuch is not easily flustered
At 49, he’d be one of the youngest Supreme Court justices in modern history. His blue suit was sharp. His face often broke into a relaxed smile. He appeared to be listening to every word every senator said, and he rarely stumbled in his talking points.
In fact, the only time Gorsuch seriously got flustered was when senators questioned his impartiality. At one point Tuesday morning Leahy pointed out that a GOP congressman said he wanted Gorsuch on the court so he would “uphold Trump’s Muslim ban.”
Gorsuch raised his voice for the first time: “Senator, he has no idea how I’d rule on that case, and, senator, I’m not going to say anything here that would give anybody any idea how I’d rule in any case like that that could come before the Supreme Court.”
