Los Angeles Times

Democrats confront Gorsuch

As he pledges his willingnes­s to defy the president, senators press nominee for his views on key issues.

- By David G. Savage and Evan Halper

WASHINGTON — Judge Neil M. Gorsuch, President Trump’s nominee for the Supreme Court, sought to assure senators Tuesday he would be independen­t, impartial and willing to rule against the occupant of the White House.

“Nobody is above the law in this country, and that includes the president of the United States,” he said.

He also told the Senate Judiciary Committee that he had made no promises or commitment­s to Trump or his aides, including whether he would vote to overrule the landmark abortion ruling Roe vs. Wade.

“Senator, I would have walked out the door” if the question had been asked, he said. “That’s not what judges do. They don’t do it at that end of Pennsylvan­ia Avenue, and they shouldn’t do it at this end either.”

Calm and unruffled, Gorsuch frustrated Democrats by refusing to be drawn into revealing his thoughts on current legal controvers­ies or past rulings. “If I were to start telling you which are my favorite precedents or which are my least favorite precedents,” he said, “I would be tipping my hand.”

Instead, Gorsuch said he was there to defend his qualificat­ions and his record as an appeals court judge.

He survived the all-day session relatively unscathed, though Democrats appeared unimpresse­d by his Jimmy Stewart-like earnestnes­s or folksy yarns. Questionin­g by senators will resume Wednesday.

Committee Chairman Charles E. Grassley (RIowa) began the second day of hearings by giving Gorsuch an opening to distance himself from the president. Grassley asked whether Gorsuch “would have any trouble ruling against the president who appointed you.”

“That’s a softball, Mr. Chairman,” he replied. “I have no difficulty ruling against or for any party other than based on what the law and the facts in a particular case require.… There’s no such thing as a Republican judge or a Democratic judge.”

And anticipati­ng that Sen. Dianne Feinstein, the ranking Democrat, would press him on abortion, Grassley asked Gorsuch to discuss his views on adhering to Supreme Court precedents, a topic that can sometimes provide insights into a judge’s thinking on Roe vs. Wade and other controvers­ial rulings.

“You start with a heavy, heavy presumptio­n in favor of precedent in our system,” Gorsuch said. That is particular­ly so, he said, for cases decided many years ago. In addition to the age of the precedent, he said other key factors he would consider in deciding whether to overturn a decision are whether it has been reaffirmed over the years and to what degree the precedent is currently relied upon.

Without quite saying so, his comments appeared to signal to the Democrats that he would be skeptical about overturnin­g the right to legal abortion set in 1973.

But Democrats grew frustrated with Gorsuch’s refusal to frankly discuss his views on others cases, something almost no Supreme Court nominee does anymore because the process has become so partisan.

Sen. Al Franken (DMinn.) grilled Gorsuch about the case of a freezing truck driver who was fired after he had driven away from his broken trailer after waiting several hours for help. The temperatur­e was 14 degrees below zero.

While a U.S. 10th Circuit Court of Appeals panel upheld an administra­tive judge’s ruling in favor of the fired driver, Gorsuch dissented. He said the law would have protected a driver who refused to operate an unsafe vehicle, but it did not protect one who drove away from his trailer.

“I had a career in identifyin­g absurdity, and I know it when I see it,” said Franken, a former “Saturday Night Live” performer and writer. “It makes me question your judgment.” He pressed Gorsuch to say what he would have done when faced with the driver’s predicamen­t.

“I don’t know what I would have done if I were in his shoes,” Gorsuch replied. “I don’t blame him at all for doing what he did do. I thought a lot about this case. I totally empathize.”

Franken shot back. “I would have done exactly what he did. And I think everyone here would have done exactly what he did. And I think it is an easy answer.”

Then Franken turned to this year’s annual Conservati­ve Political Action Conference meeting in Washington, where, the senator noted, White House Chief of Staff Reince Priebus and senior advisor Stephen K. Bannon pointed to the Gorsuch nomination as a central part of their plan to “deconstruc­t the administra­tive state” and roll back 40 years of regulatory law.

“Are you comfortabl­e with your nomination being described in such transactio­nal terms?” Franken asked Gorsuch.

“There is a lot about this process that makes me uncomforta­ble,” Gorsuch said.

Earlier, Feinstein aggressive­ly questioned Gorsuch about his role in defending the George W. Bush administra­tion’s torture policies during the year he served in the Justice Department.

Feinstein produced documents that she said appeared to show Gorsuch condoning the use of waterboard­ing and other torture techniques, and offering ways to defend or explain their use. Such methods have since been abandoned by national security agencies as inhumane and ineffectiv­e. She pointed to a set of talking points she said Gorsuch prepared for thenAtty. Gen. Alberto Gonzales for a 2005 news conference.

Feinstein said the talking points asked whether “aggressive interrogat­ion techniques employed by the administra­tion yielded any valuable informatio­n.”

“And in the margin next to this question, you handwrote, ‘Yes,’” she said. Then she asked Gorsuch what informatio­n he had showing that the techniques were effective, a finding contradict­ed by a congressio­nal investigat­ive report.

Gorsuch demurred. He said he was unfamiliar with the document from which Feinstein was quoting. They agreed he’d review it and offer more fully informed answers in the second round of questionin­g on Wednesday.

Feinstein then moved on to an anti-torture bill passed by Congress, and quizzed Gorsuch about his advocacy to craft Bush’s signing statement in a way that would enable the administra­tion to continue using techniques like waterboard­ing and that would limit the ability of prisoners subjected to them to sue the government.

Gorsuch said his memory was hazy on the discussion­s that happened 12 years ago. However, he said that he recalled there were officials who were aggressive­ly pushing to preserve some of those techniques in the signing statement, but that he was not among them. He said he was on the side of preserving the anti-torture provisions in the legislatio­n.

david.savage@latimes.com evan.halper@latimes.com

 ?? Michael Reynolds European Pressphoto Agency ?? SEN. AL FRANKEN (D-Minn.) questions Supreme Court nominee Neil M. Gorsuch during his second day of hearings before the Judiciary Committee.
Michael Reynolds European Pressphoto Agency SEN. AL FRANKEN (D-Minn.) questions Supreme Court nominee Neil M. Gorsuch during his second day of hearings before the Judiciary Committee.

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