A po­lit­i­cal storm hangs over this week’s Gor­such hear­ings

Chicago Sun-Times - - FRONT PAGE - Richard Wolf @ richard­j­wolf USA TO­DAY

One of the most con­vo­luted Supreme Court con­fir­ma­tion bat­tles in his­tory fi­nally reaches the U. S. Se­nate on Mon­day, 401 days af­ter the death of leg­endary Jus­tice An­tonin Scalia left a va­cancy that spanned two pres­i­den­cies and spawned two nom­i­nees.

Fed­eral ap­peals court Judge Neil Gor­such, Pres­i­dent Trump’s choice to be the na­tion’s 113th Supreme Court jus­tice, faces sev­eral days of harsh ques­tion­ing from Democrats still seething at the Repub­li­can­con­trolled Se­nate’s re­fusal to con­sider Pres­i­dent Obama’s equally qual­i­fied nom­i­nee last year.

The 49- year- old Coloradan, a de­voted fan and oc­ca­sional fish­ing buddy of Scalia, will seem

an un­likely sub­ject of at­tack. Dap­per, folksy and im­pec­ca­bly qual­i­fied by way of Columbia, Har­vard Law, Ox­ford and two Supreme Court clerk­ships, the 10year vet­eran of the U. S. Court of Ap­peals for the 10th Cir­cuit in Den­ver has charmed se­na­tors from both par­ties in 72 cour­tesy vis­its.

But his nom­i­na­tion Jan. 31 was des­tined for a fight be­cause of what hap­pened within hours of Scalia’s un­ex­pected death at a Texas ranch on Feb. 13, 2016. Se­nate Repub­li­can leader Mitch McCon­nell vowed the seat would re­main va­cant through the pres­i­den­tial elec­tion, a prom­ise he kept de­spite Obama’s com­pro­mise nom­i­na­tion of Mer­rick Gar­land, 63, chief judge of the U. S. Court of Ap­peals for the District of Columbia Cir­cuit and a rel­a­tively mod­er­ate ju­rist.

Gor­such also is bur­dened by the pres­i­dent who chose him — one who promised to em­ploy lit­mus tests on abor­tion and guns, who largely out­sourced the ini­tial nom­i­na­tion process to the con­ser­va­tive Fed­er­al­ist So­ci­ety and Her­itage Foun­da­tion, and who has at­tacked fed­eral judges who ruled against him, both as a busi­ness­man and as pres­i­dent.

The Den­ver native, who is mar­ried, has two daugh­ters and loves the out­doors, re­mains likely to win con­fir­ma­tion be­cause of a pro­ce­dural ad­van­tage. If he can­not win 60 votes needed to break an ex­pected Demo­cratic fil­i­buster, Repub­li­cans can change Se­nate rules to elim­i­nate the su­per­ma­jor­ity re­quire­ment for Supreme Court nom­i­na­tions, just as Democrats did in 2013 for lower courts and the ex­ec­u­tive branch.

Still, this week’s hear­ings will help de­ter­mine whether Gor­such skates through the Se­nate in early April af­ter a win­ning per­for­mance or limps to the fin­ish line af­ter joust­ing with the com­mit­tee’s nine Democrats. Will he crit­i­cize Trump’s at­tacks on the ju­di­cial branch or stick to his ear­lier, pri­vate as­sess­ment of “dis­heart­en­ing?” Will he stick by his purely lit­eral in­ter­pre­ta­tion of the Con­sti­tu­tion and fed­eral laws or in­di­cate flex­i­bil­ity?

Per­haps most im­por­tant, will he an­swer ques­tions about his le­gal phi­los­o­phy and his views on past prece­dents or fol­low what con­ser­va­tive sup­port­ers who op­pose such frank­ness re­fer to as the “Gins­burg stan­dard,” af­ter Jus­tice Ruth Bader Gins­burg’s in­sis­tence on of­fer­ing “no fore­casts, no hints” in her 1993 con­fir­ma­tion hear­ings?


To pre­pare, Gor­such hasn’t just sweettalked 72 se­na­tors. He has stud­ied many of the more than 2,000 opin­ions that bear his name and fa­mil­iar­ized him­self with roughly two dozen ar­eas of law likely to be ad­dressed by the Se­nate Ju­di­ciary Com­mit­tee.

He has sub­jected him­self to “mur­der boards” — sev­eral ses­sions of ques­tion­ing by White House and Jus­tice Depart­ment lawyers por­tray­ing the se­na­tors who will quiz him this week.

Leonard Leo, the con­ser­va­tive Fed­er­al­ist So­ci­ety ex­ec­u­tive vice pres­i­dent who has taken a leave of ab­sence to help Gor­such, pre­dicts “a clash of vi­sions about the role of the courts” — but with­out the de­gree of speci­ficity Democrats will de­mand. Gor­such, he says, prob­a­bly will stick close to the “Gins­burg stan­dard” even if asked about cases set­tled decades ago, such as Roe v. Wade, which made abor­tion le­gal na­tion­wide.

“The fact that some­thing was de­cided in the past doesn’t mean that you can talk about it,” Leo says. “If he starts to an­swer ques­tions about pol­icy, then he’s opened the door to other ques­tions about pol­icy.”

While Gor­such prepped, the 20- mem­ber com­mit­tee and its staff have dug into his past, pars­ing his 68- page ques­tion­naire, which ar­rived with 20 ap­pen­dices, as well as about 175,000 pages of records pro­duced by the Jus­tice Depart­ment and the Ge­orge W. Bush Pres­i­den­tial Li­brary. The lat­est batch of doc­u­ments ar­rived Fri­day.

That lengthy pa­per trail will be in the back­ground Mon­day when Gor­such speaks in pub­lic for the first time since he ap­peared with his wife, Louise, in the East Room of the White House to ac­cept Trump’s nom­i­na­tion. Af­ter sit­ting like a pot­ted plant while Repub­li­can se­na­tors speak glow­ingly and Democrats skep­ti­cally of his record, he’ll de­liver his lon­gawaited open­ing state­ment, mark­ing the start of the first Supreme Court con­fir­ma­tion hear­ing since Jus­tice Elena Ka­gan’s de­but in 2010.

Then on days 2 and 3, Gor­such will be a piñata, sub­jected to sev­eral rounds of ques­tions about his ad­her­ence to “orig­i­nal­ism” and “tex­tu­al­ism” — the doc­trines of fol­low­ing the Con­sti­tu­tion and statutes to the let­ter — and his var­i­ous opin­ions, dis­sents and con­cur­rences is­sued since 2006. The fi­nal day is re­served for tes­ti­mony from col­leagues, op­po­nents and in­ter­est groups on both sides.

If things go ac­cord­ing to plan for Repub­li­cans, the com­mit­tee will vote on his nom­i­na­tion the first week of April and the full Se­nate a few days later. How he is con­firmed would be up to Democrats— by get­ting the 60 votes, in­clud­ing eight from Democrats, needed to sur­mount a fil­i­buster, or by forc­ing Repub­li­cans lead­ers to change the rules.

One way or the other, he would be sworn in be­fore the fi­nal oral ar­gu­ments of the term in April — and avail­able to re­hear any cases that emerged from the short­handed court in 4- 4 ties, as four cases did last term.

Demo­cratic se­na­tors and lib­eral in­ter­est groups hope for a dif­fer­ent sce­nario. They are go­ing all out to de­feat Gor­such de­spite his cen­tral- cast­ing cre­den­tials and de­meanor. In re­cent days, the na­tion’s most prom­i­nent civil rights groups have come out against con­fir­ma­tion, cit­ing his rulings in fa­vor of busi­ness and gov­ern­ment in­ter­ests over the “lit­tle guy.”

“We have con­cerns that he has a nar­row view of rights that are pro­tected by the Con­sti­tu­tion, as well as a skep­ti­cal view about the im­por­tance of pro­tect­ing those rights in the court­room,” the Lawyers’ Com­mit­tee for Civil Rights Un­der Law said in a 26- page re­port. The NAACP Le­gal De­fense and Ed­u­ca­tional Fund fol­lowed a day later with 70 pages, con­clud­ing that Gor­such “would take a nar­row view of — if not af­fir­ma­tively weaken — the fun­da­men­tal and hard­fought civil rights of African Amer­i­cans and other his­tor­i­cally marginal­ized com­mu­ni­ties.”


On many hot- but­ton is­sues of the day, Gor­such’s record won’t of­fer much of a guide­post. His views on abor­tion, for in­stance, can­not be gleaned even from his 2006 trea­tise against eu­thana­sia and as­sisted sui­cide. The judge’s most fa­mous cases in­volved the craft store chain Hobby Lobby and the re­li­gious or­der Lit­tle Sis­ters of the Poor, which ob­jected to the Obama ad­min­is­tra­tion’s rule that em­ploy­ers of­fer free in­surance cov­er­age for con­tra­cep­tives. In both cases, he sided with the em­ploy­ers based on their re­li­gious be­liefs.

Con­ser­va­tive groups have spent close to $ 20 mil­lion to sup­port the nom­i­na­tion — one of the few moves Trump has made that unites them. They have pro­duced an ar­ray of Gor­such’s col­lege class­mates, his for­mer law clerks, and even a hand­ful of lib­eral ap­pel­late lawyers who sing his praises. Neal Katyal, for­mer act­ing so­lic­i­tor gen­eral in the Obama ad­min­is­tra­tion, will help in­tro­duce Gor­such on Mon­day morn­ing.

Gor­such is “pre­cisely the kind of per­son you’d ex­pect a Repub­li­can ad­min­is­tra­tion to nom­i­nate,” for­mer U. S. so­lic­i­tor gen­eral Paul Cle­ment, who served in the Ge­orge W. Bush ad­min­is­tra­tion, said Fri­day. Don­ald Ver­rilli, who served in the same ca­pac­ity un­der Obama, said Gor­such “checks all the boxes that you would want to check.”

One box that could pro­vide fire­works at the hear­ings stems from the 13 months Gor­such spent in 2005- 06 as the top aide to the Jus­tice Depart­ment’s third- rank­ing of­fi­cial — a job that put him in the mid­dle of the Bush ad­min­is­tra­tion’s war on ter­ror, from the war­rant­less wire­tap­ping of ter­ror­ism sus­pects to the treat­ment and tri­als of de­tainees.

“I think you will see a re­trial of the Bush war on ter­ror,” the Fed­er­al­ist So­ci­ety’s Leo says. “You’ll see Democrats try­ing to re­visit the pol­icy bat­tle.”

Neil Gor­such’s open­ing state­ment to­day kicks off the first Supreme Court con­fir­ma­tion hear­ing since Jus­tice Elena Ka­gan’s in 2010.


Neil Gor­such’s nom­i­na­tion hits the U. S. Se­nate to­day.

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