Trump, GOP face fresh test to shape high court

Austin American-Statesman - - MORE OF TODAY’S TOP NEWS - By Ed O’Keefe and Robert Barnes

When Judge Neil Gor­such ar­rives on Capi­tol Hill this morn­ing to be­gin his con­fir­ma­tion hear­ings for a seat on the Supreme Court, he will give Pres­i­dent Don­ald Trump his first chance to make a last­ing im­print on the fed­eral ju­di­ciary — and Repub­li­cans a fresh test to work their will now that they con­trol all of Wash­ing­ton’s levers of power.

Gor­such, a fed­eral ap­peals court judge from Colorado, was pro­moted by con­ser­va­tive le­gal ac­tivists be­cause of his cre­den­tials, a decade of right-of-cen­ter rul­ings and his al­le­giance to the same brand of con­sti­tu­tional in­ter­pre­ta­tion em­ployed by the late jus­tice he would re­place, An­tonin Scalia.

“Sin­gle best thing the pres­i­dent’s done,” said Sen. Lind­sey Graham, R-S.C., a fre­quent Trump foil who pre­dicted Repub­li­can unity on the mat­ter and an easy vic­tory for the pres­i­dent fol­low­ing the string of con­tro­ver­sies that Trump has wrought since he took of­fice.

All of that also sets up a stark dilemma for Se­nate Democrats. To­day brings their new­est op­por­tu­nity since the con­fir­ma­tion hear­ings of Trump’s Cab­i­net to take a stand against a young ad­min­is­tra­tion that has hor­ri­fied lib­eral Amer­i­cans with ef­forts to strip away pro­vi­sions of the Af­ford­able Care Act, im­pose an en­try ban on some im­mi­grants and deeply cut fed­eral agen­cies.

The left also re­mains an­gry about a Supreme Court seat that has sat va­cant since Scalia died 13 months ago, af­ter which Se­nate Ma­jor­ity Leader Mitch McCon­nell, R-Ky., de­cided to block a hear­ing for Pres­i­dent Barack Obama’s se­lec­tion for the seat, Judge Mer­rick Gar­land of the U.S. Court of Ap­peals for the D.C. Cir­cuit.

Gor­such seemed to fore­cast what might await him from Democrats in a 2002 col­umn he wrote la­ment­ing the state of the Supreme Court nom­i­na­tion process: “When a fa­vored can­di­date is voted down for lack of suf­fi­cient po­lit­i­cal sym­pa­thy to those in con­trol, grudges are held for years, and re­tal­i­a­tion is guar­an­teed.”

Yet Democrats are di­vided about how to take on a ge­nial ju­rist who has made few waves in the weeks since Trump nom­i­nated him and he be­gan meet­ing with law­mak­ers on Capi­tol Hill.

Gor­such “is a bit of a puz­zle,” said Sen. Dianne Fe­in­stein, D-Calif., the top Demo­crat on the Se­nate Ju­di­ciary Com­mit­tee. “We’re go­ing to try to put those pieces to­gether so that the puz­zle is com­plete and we have an un­der­stand­ing of what kind of a fifth vote will be go­ing on the court.”

Asked about what more she hopes to learn about Gor­such’s stances, Fe­in­stein said: “Vot­ing rights. Right to choose. Guns. Cor­po­rate dol­lars in elec­tions. Worker safety. Abil­ity of fed­eral agen­cies to reg­u­late. All of the en­vi­ron­men­tal is­sues — water, air.”

Sen­a­tors and their staffs are also ex­am­in­ing Gor­such’s role as a high-rank­ing of­fi­cial in the U.S. Jus­tice De­part­ment at the time the Ge­orge W. Bush ad­min­is­tra­tion was deal­ing with Guan­tanamo Bay de­tainees and re­ports of tor­ture.

A new trove of ma­te­ri­als re­leased this week­end show Gor­such play­ing a cen­tral role in co­or­di­nat­ing le­gal and leg­isla­tive strat­egy, but por­tray­ing him­self as rec­on­cil­ing the many opin­ions of those in the ad­min­is­tra­tion rather than driv­ing pol­icy.

“I am but the scrivener look­ing for lan­guage that might please every­body,” he wrote in one email.

Four days of hear­ings are set to be­gin to­day, when Gor­such will sit and lis­ten for sev­eral hours as mem­bers of the Ju­di­ciary Com­mit­tee read open­ing state­ments. He is poised to de­liver his open­ing state­ment on Mon­day af­ter­noon, giv­ing sen­a­tors and the na­tion an early in­di­ca­tion of how he might serve on the court.

On Tues­day and Wed­nes­day, Gor­such is set to face at least 50 min­utes of ques­tion­ing by each mem­ber of the panel. The pro­ceed­ings are ex­pected to con­clude Thurs­day with a panel of wit­nesses speak­ing for or against Gor­such.

Some of the is­sues that nor­mally an­i­mate Supreme Court con­fir­ma­tion hear­ings won’t de­pend upon Gor­such. De­ci­sions from last term showed there was still sup­port on the court for lim­ited af­fir­ma­tive ac­tion in higher ed­u­ca­tion, for in­stance. The ma­jor­ity that found a con­sti­tu­tional right for same-sex cou­ples to marry re­mains. And what­ever Gor­such’s po­si­tion on abor­tion rights, Jus­tice An­thony M. Kennedy’s vote to strike down a Texas law last year reaf­firmed the court’s rul­ings that say gov­ern­ment may not pass re­stric­tions that un­duly bur­den a woman’s right to an abor­tion.

Judge Neil Gor­such is nom­i­nated for the Supreme Court.

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