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Day Two: Dems Balk With Bork ‘Softballs,’ Gorsuch Gains a Base
ANALYSIS: ‘I have offered no promises on how I would rule on any case to anyone.’
By Matthew Bunson
WASHINGTON — The second day of the confirmation hearing for Judge Neil Gorsuch to become the next associate justice of the Supreme Court began with a question by Sen. Charles Grassley, R-Iowa. The chairman of the Senate Judiciary Committee asked if he would be willing to rule against the president who appointed him to the Supreme Court. Gorsuch laughed, saying that this was a softball question and added, “I have offered no promises on how I would rule on any case to anyone.” His answer was a textbook reply, but for rest of the day almost everything else tossed at him seemed to be softballs.
Day two of the Gorsuch hearings, a daylong marathon of questions and answers, witnessed the execution of the respective strategies of the Republican and Democratic members of the Senate Judiciary Committee. The Democrats sought to raise questions as to the reliability, judicial temperament, ideology and independence of the nominee. The GOP members looked to bolster his credibility, clarify or refute some of the accusations made against him and complete the work started on day one of the hearing to position him as fair and independent from the agenda of President Trump.
The day, then, was not so much a victory for Gorsuch as a time in which he demonstrated a solid grasp of the law, a keen understanding of the role of judges, a good sense of humor and above all a judicial temperament that appeals to the basic decency of people and sees those before his bench as persons first and foremost. “A person,” he told the committee, “… not a this kind of person or that kind of person.”
The Bork Blueprint
With the stakes so high and with the Democrats in a minority position in the U.S. Senate, the obvious blueprint to follow for the Democratic members of the Judiciary Committee was to “Bork” the nominee. The term, of course, refers to the brutal and now-infamous demolition of Reagan nominee Judge Robert Bork in 1987. Since then, the general game plan for those opposing a specific nominee has been to portray the candidate as radical, dangerous and far outside “the judicial mainstream.” This strategy was employed against Gorsuch by each Democrat on the committee, but unlike 1987, the result was a series of misfires.
Sen. Dianne Feinstein, D-California, continued her focus on the 1973 Roe v. Wade decision, trying to get Gorsuch to agree that there is a “super-precedent” regarding abortion, a term with thin legal foundation itself that has been embraced by some pro-abortion lawmakers when interrogating prospective judicial nominees. Gorsuch quietly rebutted the term even as he stated factually that Roe v. Wade does now have precedent. “Roe v. Wade,” he said to the committee, “decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed … and all of the other factors that go into analyzing precedent have to be considered. … A good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other.”
Sen. Dick Durbin, D-Illinois, attacked Gorsuch for his lone dissenting decision on the federal appeals court in the case of Alphonse Maddin, a truck driver who was fired for leaving a trailer with frozen brakes because of frigid temperatures against the orders of his employer. The case — one of 2,700 in which Gorsuch was involved — has been used to characterize the nominee as an enemy of the “little guy.” Gorsuch admitted, “This is one of those you take home at night,” but he then batted the question back to where he views that it properly rests. “My job is to apply the law that you write. The law as written said he would be protected if he refused to operate. By any plain understanding, he operated the vehicle. I said it was an unkind decision, I said it might have been a wrong decision, a bad decision, but my job isn’t to write the law, Senator: It’s to apply the law. If Congress passes a law saying the trucker in those circumstances gets to choose how to operate his vehicle, I’ll be the first in line to enforce it.”
Durbin then moved to what some clearly hoped would be a moment of high drama, in which Gorsuch was accused of asking gender bias with a supposedly inappropriate question to students in an ethics class about planning a family. It turned out that the question was actually part of the class and was included in a legal textbook.
From there, Durbin raised professor John Finnis, Gorsuch’s dissertation director at Oxford, and tried to taint the nominee by tying him to some of Finnis’ controversial comments. Gorsuch suggested instead that the senators read the more than six million words he has written and then look at his record. He also listed multiple cases in which he rendered fair decisions. “All persons are equal under the law,” he proposed. “This is one of the most radical ideas in history.”
Sen. Sheldon Whitehouse, D-Rhode Island, devoted his entire time of questioning to “dark money,” giving voice to the anger of liberals regarding the 2010 Supreme Court decision in Citizens United v. FEC that dealt with the regulation of campaign spending by organizations. Whitehouse insinuated that the nominee might be a stooge for shadowy corporate interests or so naïve as to be unqualified to sit on the high court. Gorsuch responded, as he did throughout the day, by urging the senators once again to look at his record.
And so it went.
Religious Liberty and Originalism
While the effort to trap Judge Gorsuch proved a mental exercise that the nominee embraced readily, both Democrats and Republicans did manage to touch on some important and relevant topics. There were further questions on originalism, the Second Amendment, corporations, waterboarding, religious liberty and the cases involving the Little Sisters of the Poor and Hobby Lobby.
On the topic of religious freedom, Gorsuch was asked by Sen. Orrin Hatch, R-Utah, about Hobby Lobby, the Little Sisters of the Poor and the Religious Freedom Restoration Act (RFRA) and whether they effectively promoted religious tolerance.
“It applied to a Muslim prisoner in Oklahoma who was denied a halal meal,” Gorsuch answered. “It’s also the same law that protects the rights of a Native-American prisoner who was denied access to his prison sweat lodge; it appeared solely in retribution for a crime that he committed, and it was a heinous crime. But it protects him, too. And I wrote those decisions as well, Senator, yes. I wrote the — the Native-American prisoner case, and I participated in and I wrote a concurrence in the Muslim-prisoner case.”
An Independent Jurist
For the Republican members of the committee, their job of bolstering the nominee was made significantly easier by Gorsuch’s aplomb and ease with the questions. Still, they went to some pains to assist Gorsuch in asserting judicial independence from President Trump, especially given the charge that his name had appeared during the presidential campaign on the then-nominee’s list of judges he would consider acceptable for the highest court in the land.
Two moments were especially memorable and went some way in burnishing Gorsuch’s temperament and independence. Sen. Lindsey Graham, R-South Carolina, asked Gorsuch outright if Trump had asked him whether he would rule to overturn Roe v. Wade. “Senator,” Gorsuch replied, “I would have walked out the door.”
The second moment came when he was being questioned by Sen. Pat Leahy, D-Vermont, and was asked to reply to a Republican congressman’s poor decision in asserting that Gorsuch would “uphold Trump’s Muslim ban.” Gorsuch responded forcefully: “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.”
Day three for the confirmation hearing will bring a second round of questions from the committee and then a large number of witnesses, including representatives of various groups opposed or in favor of the nomination. Gorsuch’s most important work for the nomination process has another day. He passed a major test on Tuesday.
Matthew Bunson, a senior editor with the Register, is covering the Gorsuch hearings in Washington. He filed this report from the Senate Judiciary Committee room.
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