Court nominee faces skeptical senators
WASHINGTON — A smiling, confident Judge Neil M. Gorsuch cruised through the first day of his Supreme Court hearing Monday by striking a tone of humility and idealism. But a partisan confirmation battle may yet await.
Democrats voiced skepticism about his conservative record and pro-business rulings, and repeatedly brought up Republicans’ refusal last year to even consider President Obama’s nominee for the same seat now being filled by President Trump.
Gorsuch, 49, pledged to senators that he would be a restrained, fair and nonpartisan justice of the nation’s highest court.
“These days we sometimes hear judges cynically described as politicians in robes,” he said in his opening statement. “But I just don’t think that’s what a life in the law is about.”
Gorsuch’s statement capped a day in which Democrats raised concerns about what they see as an increasingly conservative and activist Supreme Court that has struck down laws on campaign spending and vot-
ing rights, and shielded corporations from suits from injured people.
The high court “is polarized along party lines in a fashion that we have never seen,” Sen. Sheldon Whitehouse (D-R.I.) said.
He cited a series of 5-4 rulings in which the court’s five Republican appointees “helped Republicans at the polls, helped Republicans gerrymander ... and helped corporate money flood the elections.”
Democrats expressed doubts about whether Gorsuch, currently a judge on the U.S. 10th Circuit Court of Appeals in Denver, could be an independent voice, standing up to Trump or big corporations when necessary.
“Will you elevate the rights of corporations over those of real people?” asked Sen. Patrick J. Leahy (D-Vt.). “And will you rubber-stamp a president whose administration has asserted that executive power is not subject to judicial review?”
Referring to the Trump administration’s clashes with courts over his proposed travel ban, Sen. Richard J. Durbin (D-Ill.) quipped, “You’re going to have your hands full with this president. He’s going to keep you busy.”
Republican senators praised Gorsuch as exactly the kind of judge who should be elevated to the Supreme Court.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said Gorsuch had shown he believes in judicial independence and in checking executive overreach. He chided Democrats for suddenly showing an interest in such principles now that a Republican is in the White House.
“Some of us have been alarmed by executive overreach, and the threat it poses to the separation of powers, for quite some time now,” he said, citing what he said were abuses under Obama.
The competing House Intelligence Committee hearing Monday about the FBI investigation into whether some in the Trump campaign coordinated with Russians in the meddling in the U.S. election did not go unnoticed in the Senate hearing.
“The possibility of the Supreme Court needing to enforce a subpoena against the president is no longer idle speculation,” Sen. Richard Blumenthal (D-Conn.) said. “So the independence of the judiciary is more important than ever.”
The stark difference in tone and substance set the stage for the senators on Tuesday to begin questioning Gorsuch, Trump’s choice to fill the seat of the late Justice Antonin Scalia.
Durbin said he would press Gorsuch to explain several of his decisions that sided with corporations and against employees. They included the Hobby Lobby case, in which Gorsuch voted to shield the Christian owners of the craft store chain from paying for some contraceptives mandated under Obamacare.
“I was struck by the extraordinary, even painful lengths the court went to to protecting the religious beliefs of the corporation and its wealthy owners, and how little attention was paid to the employees.”
He and other Democrats are also likely to focus on the case of Alphonse Maddin, a truck driver from Detroit who was fired after he left his broken trailer’s cargo on a freezing night. Gorsuch dissented from a decision that found the firing was improper.
“It was at least 14 below,” Durbin said, “but not as cold your dissent.”
There were signs some of the senators’ questioning will focus on the debate over so-called originalism, a constitutional doctrine popularized by Scalia and embraced by Gorsuch.
The theory holds that instead of being reinterpreted to reflect changing times, the Constitution should be seen only as it was during the times when it was written. Conservatives often prefer such an approach, which liberals say leaves little room for modern-day issues like women’s rights and gay marriage.
“I find this originalist judicial philosophy to be really troubling,” said California Sen. Dianne Feinstein, the committee’s ranking Democrat. “I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.”
But Grassley praised Gorsuch’s judicial restraint. “Judges are not free to rewrite statutes to get results they believe are more just,” he said. “Judges are not free to reorder regulations to make them more fair. For sure, judges aren’t free to update the Constitution. That’s not their job. That power is retained by the people, acting through their elected representatives.”
For his part, Gorsuch seemed to agree that the power of the courts should be limited, referring to “the modest station we judges are meant to occupy in a democracy.”
Feinstein worried that Gorsuch would vote to overturn the Roe vs. Wade ruling that legalized abortion. She said this decision, now 44 years old, “ensured that women and their doctors will decide what’s best for their care, not politicians.”
Most Democratic senators also noted in their opening statements that the Republican-led Senate last year refused to hold hearings on Obama’s nomination of Judge Merrick Garland.
That unprecedented move has led some to predict Democrats will mount a campaign to block Gorsuch.
Sen. Ted Cruz (R-Texas) rejected the Democrats’ complaints, noting that Trump had campaigned on his pledge to appoint a conservative judge and characterizing the presidential election as a national “referendum” on what kind of judge should succeed Scalia.
After the hearing, Grassley told reporters he was confident Gorsuch would be confirmed by the Senate, probably in early April.
“We have 52 Republicans and I haven’t heard of any opposition” among Republicans, he said. After four days of hearings, “people will have a difficult time voting against him,” Grassley said of Gorsuch.
‘You’re going to have your hands full with this president. He’s going to keep you busy.’ — Sen. Richard J. Durbin (D-Ill.), to Supreme Court nominee Neil M. Gorsuch, referring to the Trump administration’s clashes with courts over his travel ban