HIGH COURT NOMINEE AWAITS FATE
Gorsuch is prepared for Senate grilling, but GOP and some Democrats are forecasting confirmation
“Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators.” — NEIL GORSUCH
WASHINGTON — Colorado-based federal appellate Judge Neil Gorsuch has political momentum as he enters his Supreme Court confirmation hearing Monday.
Gorsuch appears about to fill the seat kept vacant by Senate Republicans during the final 10 months of the Obama administration. Even some Democrats still furious over the GOP power play are forecasting Gorsuch’s success.
Since his Jan. 31 nomination by President Donald Trump, Gorsuch has met with upward of 70 senators and rehearsed disarming answers in private “murder boards.” He’s made public through the Senate Judiciary Committee more than 175,000 pages of his past writings, speeches and documents.
And in a deft move, Gorsuch showed independence without piercing any White House thin skins when a Democratic senator quoted him as calling Trump’s heated rhetorical assault on his fellow federal judges “demoralizing” and “disheartening.”
Threat of filibuster
The outdoorsy 49-year-old graduate of Columbia, Harvard Law School and Oxford University, who esteems the late Justice Antonin Scalia, will be confirmed before the April recess, Senate Majority Leader Mitch McConnell, R-Ky., told Politico March 9. The recess is scheduled to begin April 7.
The Senate’s 52 Republicans appear to be in lockstep behind Gorsuch. To overcome a potential filibuster, as has already been threatened by Sen. Jeff Merkley, D-Ore., Republicans would have to peel away eight Democrats. That would not be impossible, as some politically vulnerable and/or institution-minded lawmakers will call for an up-or-down vote even if they ultimately oppose Gorsuch.
Led by Sen. Dianne Feinstein of California, the Judiciary Committee’s senior Democrat, skeptical lawmakers will nonetheless do their best to shake Gorsuch, who will be present for opening statements Monday and a full day of direct questioning Tuesday.
Hobby Lobby ruling
In one of his most visible decisions since the Senate confirmed him as an appellate judge by voice vote in 2006, Gorsuch sided in 2013 with the company Hobby Lobby in its effort to avoid, on religious grounds, complying with the Affordable Care Act’s so-called “contraception mandate,” which required health insurance plans to cover contraceptives. The Supreme Court, in a 5-4 decision, later sided with Hobby Lobby as well.
Gorsuch’s confirmation would be a triumphant moment for “originalism,” the once-obscure theory that the Constitution should be interpreted according to the meaning of words and phrases as they were understood in the times they were written.
Scalia was the foremost champion of this approach.
“Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch said in a 2016 lecture. “To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society.”
‘Originalism’ debate
Judges, Gorsuch went on to say, should “apply the law as it is, focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
Gorsuch’s public endorsement of originalism helped him win the nomination to succeed Scalia, and it is likely to play a key role in the debate over his confirmation.
Advocates of originalism see it as a way to limit the power of judges lest they be tempted to rewrite and revise the Constitution as they see fit. “The theory of originalism treats a constitution like a statute and gives it the meaning that its words were understood to bear at the time they were promulgated,” Scalia once said.
Critics dismiss it as little more than a slogan that wraps conservative goals into a lofty constitutional doctrine.